← The Lawfare Podcast
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- [00:00]
Scott R. Anderson
When everything is moving all at once, your workforce, your tech stack, your business, you don't need more tools. You need one solution. That's why Paylocity built a single platform.
- [00:11]
Eric Columbus
To connect hr, finance and IT with AI driven insights and automated workflows that simplify the complex and power what's next. Because when everything comes together in one.
- [00:22]
Scott R. Anderson
Place, growth comes easy experience. One place for all your HCM needs.
- [00:26]
Eric Columbus
Start now@paylocity.com 1.
- [00:30]
Scott R. Anderson
Fall is here and Nordstrom has the latest styles and hottest trends.
- [00:34]
Kate Clonick
Thousands of options for under $200. I'm talking about plaid outerwear, oversized sweaters.
- [00:40]
Scott R. Anderson
That are cozy, western inspired pieces, prairie dresses, and you know, I love a skirt. Nordstrom has free shipping and returns, which.
- [00:48]
Kate Clonick
Is why I love them. And they have fast options like buy.
- [00:50]
Scott R. Anderson
Online, pick up in store. Shopping at Nordstrom is always easy.
- [00:54]
Kate Clonick
I love that Nordstrom is always high.
- [00:56]
Scott R. Anderson
Quality and kind of guides me in what's trendiest for the season. And they have the top brands like.
- [01:01]
Kate Clonick
Veronica Be Favored Daughter, All Saints, Coach.
- [01:03]
Scott R. Anderson
Rag and Bone, Tory Burch.
- [01:05]
Kate Clonick
So shop now in stores or@nordstrom.com or.
- [01:09]
Scott R. Anderson
Download the Nordstrom app. Kate, I am incredibly distracted because while I am looking at you and you look fairly normal and not overly intense, today you have a painting of a woman with the incredibly intense stare putting daggers into my heart from over your shoulder. What is this painting on your back wall? Talk to me about it.
- [01:31]
Kate Clonick
Oh, that I painted.
- [01:33]
Scott R. Anderson
You did paint that. It's quite good. I like it. It is very intimidating to have directly. It's almost got like a dog shirt effect with Ben where you have like the goggle eyes looking at you as Ben looks at you.
- [01:43]
Kate Clonick
It's a pair of paintings and it's. It's Godzilla. And Grace Kelly is actually who that's called.
- [01:48]
Eric Columbus
Grace Kelly.
- [01:49]
Kate Clonick
Wow.
- [01:50]
Scott R. Anderson
I thought that was okay. She looks so familiar. I thought it was Felicity for a second.
- [01:54]
Kate Clonick
Whoever Felicity is, you can't see everything on my shelves behind me. But it is such a curated thing of like curios that are matched with books that go with them and like all of these types of kind of things that like this is like my western theme. There's like lonesome dove and some buffalo horn cups and like. Yeah, and like, you know, like an old like silver dollar that I found in a railroad track in Montana and like, I don't know. So just kind of like. I don't know. I am an object lesson Scott.
- [02:25]
Scott R. Anderson
I like it. That's like you're waiting for Architectural Digest to give you a call for their home tours and like, really to give the here's my slightly inane household decor. Here is my deep, meaningful household decor. And they may be the same thing, but I've got a story for all of it. Just fill 15 minutes of YouTube space. It's a good strategy.
- [02:44]
Kate Clonick
The best compliment I ever got was like and I've gotten it a few times is like, people being like, I kind of want to go shopping in your house.
- [02:55]
Scott R. Anderson
Hello everyone and welcome back to Rational Security, the show where we invite you to join members of the Lawfare team as we try and make sense of the week's biggest national security news stories. And I'm thrilled to be joined by two of the newer members of the Lawfare team, although at least one Rational Security veteran that is, of course, our latest senior editor, Kate Clonick. Kate, thank you for coming back on the podcast.
- [03:16]
Kate Clonick
Thanks for having me.
- [03:17]
Scott R. Anderson
I think you probably have been on many, many times over the years. I think it's your second or third or fourth time maybe on since I've been involved in rad. Secondly, so excited to have you back on what will become a more recurring frequent Kid Clonic segment. No doubt now that you're with us in a more full time capacity. And joining for the first time is our relatively newly minted senior editor, although he's not an unfamiliar name or perhaps voice for folks who listen to the podcast or read Lawfare. That is of course, our new senior editor, Eric Columbus.
- [03:44]
Eric Columbus
Eric, just want to say I'm glad to be here for my first time.
- [03:46]
Scott R. Anderson
Well, Eric, thank you for coming on. Kate, thanks for coming on. We have a couple of really interesting stories in the news making big headlines, so let us dig into it as we Talk through following three topics for this week's episode. Topic 1 An unerring of grievances since the assassination of conservative activist Charlie Kirk. Some supporters of his, including several figures within the Trump administration, have actively sought to have individuals who have said critical or purportedly insensitive things about Kirk removed from their jobs or otherwise punished. This arguably came to a head last week after Jimmy Kimmel Live was pulled from the air following statements by FCC Chairman Brendan Carr suggesting networks might face additional regulatory scrutiny for not addressing alleged misinformation about Kirk's killer, Kimmel purportedly put forward. And while Kimmel is now, as of last night, officially back on the air, several major local affiliates are refusing to air his show. How do these efforts comport with the First Amendment, and what do they mean for freedom of speech? Regardless topic 2, you can't spell appeasement without Apple. After months of negotiations during which it has held off on enforcing a statutory mandated ban, the Trump administration has announced that it has reached a deal with China regarding the disposition of the social media platform TikTok and its operation in the United States. But the public details of the deal have been few and far between, and much more remains to be worked out. How close to a deal are the parties in actuality, and does it actually address the national security concerns motivating Congress's ban in the first place? Topic 3 Playing with white House Money the Trump administration has been rocked by two major corruption related stories in the past week. First, that the Justice Department is reported to have closed an investigation into White House immigration czar Tom Homan, who reportedly accepted $50,000 from undercover FBI agents prior to joining the administration on the understanding that he would help the donors gain access to the incoming Trump administration. And second, new details suggest that the recent deal to permit chip sales to the UAE were tied up in a variety of major cryptocurrency deals that enriched both the Trump Organization and others in the Trump administration, only the latest in a long history of suspect cryptocurrency transactions by Trump related businesses, at least in the eyes of many skeptics. How big a problem are these transactions and what do they tell us about the state of corruption in the second Trump administration? So for our first topic, Eric, I want to turn to you because you have been digging into this topic for us this week. It's been a dramatic week for free speech and the First Amendment, I think it's fair to say. First, we had the incredibly dramatic and violent and shocking assassination of Charlie Kirk in the last week and a half or so now, followed by a really, really strong public reaction by a variety of people, an element of which, and we shouldn't correlate and say that this is all of it, but an element of which is focused on trying to silence or punish or otherwise put pressure on voices to suppress criticism of Kirk or otherwise. Comments that are seen as insensitive about Kirk, his killer, the killing and a sort of related issues. Some of these have come from figures in the White House. Vice President Vance has said certain things similar to this. President Trump has said certain things similar. Certainly, of course, Brendan Carr, chairman of the fcc, most recently specifically in relation to Jimmy Kimmel, said things like this and it led to not just the Jimmy Kimmel Live show being pulled off the air, but also a lot of people being removed from their jobs or facing other sorts of penalties from their employers over the last few weeks, at least according to a number of media reports. So talk to us about what you think are the major trends and actions we're seeing here and the sort of questions they're raising for you about what illegal implications they might have.
- [07:09]
Eric Columbus
I think we've seen a lot of people embarrass themselves in the wake of the Kirk assassination, and both private figures and public figures, and obviously the public figures have a higher responsibility than public officials. You saw the attorney general saying that hate speech is not protected speech, which is obviously nonsense. And she basically had to walk that back the next day. She also said that they could go after people at a Kinko's. Kinko's at Office Depot who refused to print a flyer advertising a vigil for Charlie Kirk. But those people have the First Amendment right not to print something, just like the people have a First Amendment right to ask them to print something. And those are kind of similar issues involved in the recent Supreme Court case called Masterpiece Cakeshop, with the added wrinkle here that there isn't even any law that under normal circumstances would give the federal government any authority to go after a copy shop for not printing something. And that is because political speech, generally speaking, is not a protected class. It's not a protected class. Political views, rather, it's not a protected class under federal law. It's only in certain places, in certain states protected under state law. And then we get to the firings of personnel all over the country for making comments regarding the Kirk assassination largely on social media. And these are kind of tough to evaluate in bulk because they require kind of a case by case assessment. The Supreme Court has said that when a. A public employee, such as, for example, a university employee, but could be any public employee at a public university or elsewhere, is talking about issues of public concern that are not part of their job, but just kind of ancillary to that, basically kind of not part of their job duties if they get fired or reprimanded or otherwise subject to any adverse action. There's a balancing test that courts need to apply, weighing their interest in expressing themselves versus the employer's interest in providing public services efficiently. And what does that mean? That could mean there's such a wide variety of factors that would go into such a balancing. And one interesting wrinkle in this case is that one of those factors is the extent to which disruption occurs to the employer, to the business of the employer in, say, the university. And here we've got, obviously, people who are supporters of Charlie Kirk are upset when people say bad things about Charlie Kirk. But you've got the added element here of people like J.D. vance saying, if you hear someone saying something bad about Charlie Kirk's assassination, call their employer. I mean, this is a very small paraphrase of what the vice president actually said. You've got the. In some states, such as Indiana, the attorney general opening up a portal for people to submit things and basically pounding the drums there. So that is almost an artificially created negative sentiment to kind of rile people up, to get them angry about the comments that people are making about Charlie Kirk. And that raises the question of whether they're establishing kind of a. What's known First Amendment law as a heckler's veto, that speech being restricted because people don't like it. And that normally is something in First Amendment law we don't give any credence to. But in the public employee speech context, it does sometimes play a role. If you are, for example, if you were a police officer making racist comments on Facebook unrelated to your job, but just like despicable racist comments, people in the community may reasonably fear that you would not treat people of that race fairly, and a police department who fires you for it would probably win. But what happens if you are, say, not in a public facing role and you make comments that are objectionable to some people? Is it really disrupting the functions of, say, a university? If an assistant dean somewhere, a bureaucrat is saying things about how Charlie Kirk was a worthless individual, does that rise to the level where the disruption exceeds the right of the employee to speak? Those are questions that are being decided by courts on a case by case basis.
- [12:02]
Scott R. Anderson
So, you know, it strikes me it's an important distinction here. This is a phenomenon we've become a little more familiar with over the last few years because this isn't. While it's kind of in some ways the highest and most recent of these public pressure campaigns, it's not the only ones. I mean, we've seen pressure be put on employers for other actions, for relations, going back to things around whether it was the Black Lives Matter protests and related issues in 2020, 2021, the MeToo movement, a lot of efforts to come forward and put pressure on people, highlighting their purportedly inappropriate statements or actions, and then putting pressure on employers and other people. One element that is really different here from the other ones, though, is that this is coming from public officials, in particular the vice president, the president, but also a variety of other public officials. How does that change the analysis if the vice president is Telling my employer as a private employee, you should fire this person. Does that raise a different set of questions for that, you know, the propriety, the legality of the vice President's actions than if you were a private citizen?
- [13:07]
Eric Columbus
I think it does because you've got another state actor who's jumping in. And that increases the First Amendment concerns. And it's likely the case. It may be difficult to prove, but it's likely the case that some of these public employers are reacting to, not just to the views of their constituents, if you will, within the, say, university, but reacting to what they believe their state officials want them to do, such as in a place like Indiana, where the attorney general is getting very agitated. And public universities, probably more so than other public employers, are very skittish these days and their budgets depend upon state legislatures. So they have very strong incentives to crack down on anti kirk speech in places where that are controlled by Republicans. It remains to be seen to what extent courts will take that into account, but it's very concerning.
- [14:17]
Scott R. Anderson
So this all resembles another phenomenon we might be familiar with the last few years, where that particularly was a focus during the Biden administration, particularly a source of kind of ire by a lot of folks on the right. And that is what has come to be known, at least in the kind of regulatory context, as jawboning. Kate, I know you and I have actually talked about jawboning in the past. I cannot remember for the life of me whether it was on a podcast or in some other event or forum. But I know we've had a conversation about this. I know this something you've followed closely. Talk to us about this jawboning phenomena as it sort of evolved and become a focus of legal scrutiny over the last five or six years, probably longer than that at this point, and how this fits into, but in some ways flips some of the priors of a lot of those prior conversations.
- [15:05]
Kate Clonick
Yeah. So this is, I think this is like absolutely fascinating. And you know, Eric gave a great overview of everything that's happened since the Charlie Kirk shooting and relating to Kimmel and the FCC and all of this kind of these statements by officials in bondage, these bizarro hate speech comments that are kind of, you know, wouldn't pass muster in a, in a, in a First Amendment 2L class. But there's a. I think that the thing that just struck me, you know, as this was happening last week, was I was just like, oh my God, this from these people. Like, it was, was really kind of the feeling that I had and Let me, let me unpack that a bit. Little. Little. And I'm not just kind of like, this isn't just like super anti the administration or super anti. Whatever. It's. It's like, if you followed this, it's just, it is a particularly sharp moment of hypocrisy and kind of double. Double standards that are kind of unbelievable. So jawboning as a concept just for. To review for listeners, Jawboning is a biblical term or has an etymology in like, the Bible. But it's generally the idea of basically trying to use economics or the threat of enforcement or bullying basically, by a government official. In the context, this isn't. It happens in economics. It happens in other types of areas. But this is in the context of the First Amendment and freedom of expression. And the idea is that comes from. Is kind of most famously laid out in a case called Bantam Books versus Sullivan, in which essentially the Rhode Island Commission that had been set up to review titles that were appropriate for bookstores to have for youth and minors wrote these letters that were basically like, we're aware and we've made the police aware that you have these obscene materials in your bookstore. We're aware. We're just, we know and we've. We've told the police. And so we're not going to tell you to take these books down. We're not going to, you know, to take these books off the shelves, but we're just going to tell you that the police know. And so Bantam Books, the publisher, sued on the grounds that this was actually jawboning or a First Amendment violation. The Supreme Court upheld this, saying that, yes, this was like a violation under the law and that this is Bantam is the high watermark for this. In any event, we don't see a ton with jawboning. It doesn't mention. It's not mentioned a lot. It comes up in huge ways a couple of years ago from like 2022 to 2024 in a case called Murthy v. Missouri, which I think I've been on the podcast to actually talk about it before, or specifically, which was essentially the idea that in social that the White House administration, the Biden administration in 2022 was threatening social media companies in this exact type of bantamy way in which they were basically saying, excuse me, please take sending emails that are saying, you have to take down this misinformation about COVID You have to take down this information about the genesis of the lab leak and where this is coming. And there were suits against Vivek Murthy and the Surgeon General and others that basically went all the way up to the Supreme Court and it was eventually laughed out of the Supreme Court. I wrote an op ed in the New York Times about the Murthy District court decision was 130 page breathless decision that quoted Orwell and Jefferson and almost no law that basically said, you know, this is this unspeakable kind of like, can you believe that they sent these emails? But, like, they did send emails. The administration had sent a few emails being like, hey, this is really bad. What the f. Like, take this. You know, take this down. But the White House administration can't do anything to Twitter or Facebook or any of these social media companies. There was no proof that there was a causative link between anything they decided to take down in their content moderation policies on the sites and getting these emails from White House officials. There was no link. There was like, it wasn't even. They weren't even closely linked in time. And there was all of these kinds of. There was all of this. So there was like just no causation in the way that you could have seen in Bantam. And also, frankly, the main thing that Amy, and this is the most beautiful part about the Murthy decision, when it came down, is that it was written by a conservative, written by Amy Coney Barrett. And so in my opinion, this gave it extra kind of. And the oral arguments were beautiful in it. Like, it was just like a taunting essentially of, like the. Of the. Of the Attorney General from Louisiana, who was a former Alito clerk, just kind of like just getting raked over the coals by the justices in Alito, like, kind of like grimacing, like, so embarrassed that this guy had clerked for him and now couldn't even like, kind of properly defend the First Amendment. But anyways, all of that being said, this was all brought. This was all thrown out. This didn't rise to the level of jawboning. This was the type of thing that the conservative voices and the right was so concerned with was this excessive use of government power to not directly censor, but to jawbone social media companies into censoring. Okay, so this is like, this is how. This is how concerned the right was with free speech. And fast forward to last week when you literally had the man who was in charge, who writes, who has the. Holds the pen to finalize licensing deals with broadcast administrators, like saying in a f. Ing podcast, well, this comedian who made a joke, bad or good, about an event that happened, you know, ABC should be aware that its affiliates are licensed by the fcc. I mean, it's just like, not only can Commissioner Brendan Carr, who is the person that I'm talking about, go and actually do something in like, the most immediate sense against abc, but then abc, upon hearing this broadcast, then goes and pulls Kimmel, right? Pulls Kimmel. Doesn't like, decide that Kimmel is going to kind of get a chance to defend himself or whatever, but pulls Kimmel entirely. And so you have like, every element that's missing and times 10, in my opinion, in, like, on steroids. That's missing in the Murthy case. But you have, like, these same people that were just breathless over the Orwellian future that we were all destined to in this. In, like, in this kind of. In this context, all of a sudden being like, oh, but no, it's. This is a really bad joke. Like, let's. Let's, like, behead the jester that makes fun of the King. That seems like a totally reasonable thing to do in the United States of America. Sorry. I am sorry. I, like, I realize as I'm saying this how worked up I'm getting. I just. This is. This is my catharsis. I was in France last week, and so I didn't have anyone to talk.
- [22:29]
Scott R. Anderson
To you about this.
- [22:30]
Kate Clonick
And so big in France, I was losing my mind. And so, like, I, you know, and I was kind of texting furiously with people. But it was a. Anyways, that is the long and the short of it, and that's where kind of the jawboning is. And that is, I think, kind of just the unbelievable kind of boomerang that we're seeing in this. I mean, we always suspected and kind of knew that the gop, the right. Was using free speech as pretext to do kind of to make moves and censor the speech. They didn't like. It just like, couldn't be more obvious or without pretext now. And I guess I'm a little appalled at, like, at that. Like, the lack of any type of beard on this was really kind of the thing that put me over the edge this week. I think it put a lot of people over the edge. So it wasn't just me, but there. But yes. Now. Now I've gotten very. I'm going to, like, get a call from my parents being like, I heard you on the. My friends heard you on Lawfare. And they got. They said you were really upset.
- [23:40]
Scott R. Anderson
Well, I mean, like, this is kind of unique because this is sort of incident where you hear these things in their peripheral and they're a third party. But it does. When it actually impacts, frankly, like what is broadcast into your home, it begins to have a much more kind of direct ramifications. And I understand these sort of direct effects. It's worth noting, I think, not the entire. And this is actually notable for the last week in particular, in response to the Kimmel thing. The entire GOP has not lined up behind the Trump administration on this. And Kimmel actually made a point of highlighting. I can't remember the Ted Cruz. A specific highlight. I think he was, as well as a number of other pretty prominent Republicans, usually big boosters of Trump administration, people who had come out and said very strong things, condemning criticism of Kirk and criticism and other insensitive comments where they proceed to be insensitive comments relating to Kirk's assassination, but nonetheless came out and said this is really an inappropriate thing, a dangerous slippery slope thing for Brendan Carr to do, for other people to do in the government. Less vocal about, again, calling for people to call people's employers, which I think does pose similar problems. But certainly here they were much more willing to say, hey, this probably crosses a line. And we've even seen Carr himself try and roll back his comments. He says they're being misconstrued. What's happening to Kimmel is a ratings issue. It has nothing to do with what the SEC said or did.
- [25:08]
Kate Clonick
Well, there was a. Did you see the theory that basically Politico called out Carr for basically enough and calling him kind of weak. And so that is the thought. That was one of the reasons that he went on this podcast and just decided to kind of say this.
- [25:22]
Scott R. Anderson
Oh, really? I didn't.
- [25:23]
Kate Clonick
Yes, there. There was like. There was like a taunting of. Of car. And so this was kind of like a reaction to that, an overreaction to that. And I mean, that could be frankly true. That's not. That seems very consistent with, like, how things roll out in this administration. But yes, he did walk it back or try to walk it back, you.
- [25:42]
Eric Columbus
Know, but then Trump kind of doubled down on it last night, I think.
- [25:45]
Scott R. Anderson
Yes, 100%, shortly before the show went on board. Well, and that kind of leads me to this question of remedies. Right. A little bit. Because we have the Murthy case, which again, was ultimately found that didn't have jurisdiction because their parties didn't have standing for a variety of reasons. But primarily it seemed to be a redressability issue. The key point basically being the government's not actively doing in the Murthy case that the government wasn't actively doing what they're accused of doing anymore. And so there really was no reason to think that there was anything redressible by enjoining, because there was nothing to enjoin the government for doing anymore, because they weren't doing it anymore. I'm kind of curious what you all think of remedies in this case. Notably, there is also in Politico, I think, an op ed by Aziz Huq, a law professor, I think, at the University of Chicago currently, who I think is particularly notable, his scholarship for the last 10 years or so, very good scholarship. Scholarship is really focused on the fact that there is a lack of constitutional remedies. Lots of constitutional violations don't have a remedy. But here he came in Politico, he wrote a piece basically saying that Kimmel actually does have a remedy here, he should file a lawsuit. And I kind of posit that he should win or at least could win. So I'm kind of curious, from your two perspectives, what remedies could there be for people who face this sort of sustained pressure, particularly from governmental actors where the First Amendment implications are are much more substantial? Eric, why don't I start with you? What are your kind of thoughts on that?
- [27:15]
Eric Columbus
Well, I think it might be hard for someone in Jimmy Kimmel's shoes in the future to get an effective remedy. To the extent money is something that the actor would want, there isn't really a great way to get it against the federal government. There was a case called NRA v. Vullo last year in which New York State financial officials were basically trying to jawbone private insurance companies into not doing business with the NRA because of the NRA's views about guns. And the Supreme Court said in a unanimous opinion that you can't do this. Basically, under the Bantam books principle, government cannot do indirectly what it can't do directly. And at the state level, there are remedies via section 1983 against the state. You can get financial damages from the state, but the Supreme Court has very much cracked down. There's no companion statute against federal officials, and the Supreme Court has limited the availability of what's known as bivens actions in which you can have an implied remedy under the Constitution. But that is highly unlikely to be available in the First Amendment context. And in terms of an injunction, it's not clear what such an injunction would say. You could possibly get an injunction telling Brendan Carr to shut up, but.
- [28:55]
Kate Clonick
That.
- [28:56]
Eric Columbus
Might be worth something in the court of public opinion, if you will. But the reason why it is so why people fear the fcc, and I think Kate alluded to this, is that they have a lot more sticks and carrots that they can deploy against media companies than the Biden administration could deploy against Facebook and Twitter. And Disney touches the FCC in so many different ways that they recently feared that Brendan Carr would find some way to go after them or give them on the opposite side, give them goodies if they did what they perceived as his bidding regarding Jimmy Kimmel. And he could do that, even if he's told to shut up and he does shut up, he could still do things like that. And as long as that there's some possible legal basis for what he's doing, he could possibly get away with it.
- [29:56]
Scott R. Anderson
Kay, what about you? What are your thoughts?
- [29:58]
Kate Clonick
Yeah, so Eric is kind of speaking to this, so I want to say that I thought Aziz, that Aziz's op ed was quite good. I liked if people haven't read it, I'm sure we'll link to it in the show notes. But it was, I think I also liked it because it does what so many of these articles don't do, which is like, you have like, Kimmel could sue for contract violation to ABC or like, you know, kind of. And I, and I like that as a law professor. But anyway, so I just want to kind of put that on the table. It doesn't all have to be high and money. So there's, there's the high and the low here. Like, there are obviously suits that Kimmel would have for, like, you know, lost pay, like, you know, reputational damage, all these types of, like, things that he could possibly bring against ABC and potentially the federal government in some type of way. And an injunction is kind of like, would be like, it's what was sought in Murthy, and it was what was sought in Bantam, and it is what was won in Bantam. But again, like, now that it's been reversed, unclear what this would do under casa. There's not really going to be like, it's not as if Kimmel suing in his personal capacity would protect other people against other. Like, this wouldn't protect Fallon if he decided to go to the mat and take this all the way to, like, the Supreme Court. This would end up, you know, in many ways this would not necessarily maybe not all the way to the Supreme Court. That would actually maybe set some precedent, but he could, like, like, essentially, he can only stand for Kimmel on this and get this injunction in this personal capacity. And so that's a little bit that lowers the amount of power and the purpose of having an injunction. And yeah, I think the one other thing that really does kind of confuse this pot here is, of course, Brendan Carr and the FCC are one piece of this. But as was reported at the time last week, there's a local TV merger that is on the table right now that ABC is deeply counting on kind of going through. And there was immediately talk that, like, the FCC could do something as negative as removing broadcasting licensing from, you know, an ABC affiliate that decided to Eric Himmel or something else like that if they decided to keep it on the air. But what would be much harder to prove and much harder to kind of show kind of a remedy for is like, that they fail to approve a merger that would then ultimately hurt abc. And then could ABC sue in some type of capacity? And yes, abc. I just walked a student through this yesterday. ABC could sue. There would be a lot, many years, like, it would be a long suit in which they would basically have to go up against a court that is very in favor of, like, the administrative, like, the administrator's ability to decide what is, what, what are, what are okay and what are okay and not okay mergers. They would have to make a case that this was like, this was brought because of political reasons, and this was some type of first violation of. That was related to, like, this Kimmel thing. I mean, but my point is, is that this was like, there's a. There's, like, some things that could happen, but so much of this you just have to look at, like, the time and money that would These type, that litigating these types of things would cost and the increasingly small and unimpactful remedies that you would have for taking these types of cases to the mat and that, like, these were the types of cases that broadcasters used to. Used to take. Used to fight for. And maybe those days, I mean, they've seemed to have been gone for a while, but, like, maybe those days are gone. Maybe it's all, you know, it is not, you know, ABC News standing up for the press. It's not New York Times standing up for the press, although maybe in the New York Times would do it. But generally, like, someone needs to fight these to put in, like, the courts not roll over. If you roll over, there is no. There's no new law that can get paid and the bad guys win. So that's like, you know, that is. But it's an expensive. It's an expensive thing to fight.
- [34:11]
Scott R. Anderson
It is, you know, I'm slightly more bullish I think than you guys are on perspective of somebody in Kimmel's position being able to get injunctive relief that may be as meaningful for them. It may not be like address the underlying harm like for the simple reason A, I'm not sure you couldn't get a class certification given that the statements by the administration are not specific to Kimmel whatsoever. A lot of their statements are about lots of media figures that are engaged in public commentary on these things. So it's not hard to imagine whether it's just late night hosts or a variety of other media figures joining into class action or being certified as a class. I don't know. There's always now there's this question about how do you handle class certification? That's under a lot more scrutiny and they have to have enough characteristics. But the fundamental concern a lot of those figures have is actually pretty identical. And that's in theory at least what is supposed to be the distinguishing characteristic of a class. So I'm not sure CASA is a huge barrier if you can get that class certification. And I suspect there's some sort of class. Whether it's all media, I don't know. But maybe at least it's people in Kimmel's sort of position and then in injunction maybe primarily symbolic, but notably this is something the administration just keeps doing. The president did it again last night. Brendan Carr has not backed off from his comments. He says he intends to keep this is the, I think a New York Times headline today, Brendan Carr intends to keep targeting media companies even though he has kind of walked back some of his initial or tried to reframe his initial comments on Kimmel. So when you have that kind of recurring conduct by the government, I'm not sure the injunctive relief is beyond the pale. Now. Does it address the underlying concern? Absolutely no. Because maybe the media companies are just going to infer or already be aware of the preference of the administration. That's enough to weigh them in a particular direction. That's an argument. But if the government has to stop saying this stuff or face the risk of potential court sanctions and other items, although again, enforcing it actually poses a variety of complications, I'm not sure that's meaningless, especially if frankly it extends to a variety of other future cases where the one on one relationship of disapproval isn't there. Because again, this is something we've seen the Trump administration actually do a couple times already in other cases. Kirk is just the biggest one. And there's no reason to think they're not going to do it in future cases. So I don't know, I'm a little more bullish on both the value of it and the prospect of getting some sort of injunctive relief. I'm not saying it's slam dunk, but I'm not sure it's fruitless entirely.
- [36:48]
Kate Clonick
Oh, to be clear, I. I would love to see this, like, actually get filed and for there to be an injunction. I would love to even have like, the procedural necessity of like kind of various standing issues kind of played out in the court and whether or not this would, you know, what, what constitutes things here. I'd love something like that. And we didn't get clear lines out of Murthy at all and barely out of Vulo. So, like, I think that there is. I think that there's a lot of room here. I just, I guess I've just never. I just, I joke that my Internet law class could be Internet guns and money class. So, like, I just kind of. I, you know, I don't really think that, like, I just don't know how much. I just don't know how much. I'm just. I guess I've just become a little bit less. Less opportunistic.
- [37:34]
Scott R. Anderson
Too jaded.
- [37:35]
Kate Clonick
Yes, exactly.
- [37:36]
Scott R. Anderson
Eric, any last thoughts on this?
- [37:38]
Eric Columbus
Well, I think it's interesting, as Kay just pointed out, Murthy, they did seek an injunction because it really mattered to them the principle of the plaintiffs that the government cannot say this stuff. And there wasn't a huge, I think, ongoing financial issue for them necessarily. The jawboning had really died down by the time this reached the Supreme Court. But they really wanted to establish this principle and good for them in that sense. That's one fine reason for litigation. People may not have the same incentives in cases like this. I would also note that the First Amendment is enforced not only by the courts, but in the court of public opinion. And Ted Cruz played quite possibly very significant role and others like Rand Paul, even Joe Rogan, in pushing back against the government and perhaps stiffening the spine of Disney. It's a way in which kind of private, or rather private public actors, but non judicial actors can have a role in enforcing the First Amendment and freedom of speech.
- [38:47]
Scott R. Anderson
Okay, folks, let's be real. Nobody starts a business for the joy of calculating tax withholdings. You know, people know me as the editor of Lawfare, but I also actually run a small business, my own substack. And I gotta tell you that the payroll is a freaking nightmare. And that's where Gusto comes in to take the stress out of payroll, benefits and HR so you can focus on what you started your business in the first place for. Gusto is online payroll and benefits software built for small businesses. It's all in one remote, friendly and incredibly easy to use so you can pay, hire onboard and support your team from anywhere. It has automatic payroll tax filing, simple direct deposits, health benefits, commuter benefits, worker comp 401k, you name it. Gusto makes it simple and has options for nearly every budget. Save time with automated tools built right in. Offer letters, onboarding materials, direct deposit and more. It's quick and simple to switch to Gusto. Just transfer your existing data to get up and running fast. Plus, don't pay a cent until you run your first payroll. Try Gusto today at gusto.com lawfare and get three months free when you run your first payroll. That's three months of free payroll at gusto.com lawfair one more time gusto G-U-S-T o.com lawfair only boost mobile Boost Mobile.
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Kate Clonick
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Scott R. Anderson
Free year when you buy a new.
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Eric Columbus
5G phone new 5G phone enough, but.
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Scott R. Anderson
I'm your hype man. When you purchase an eligible device, you get $25 off every month for 12 months, with credits totaling one year of free service taxes extra for the device and service plan. Online only.
- [40:54]
Kate Clonick
Hi, I'm Madupak Enola from TED Business, and I'm here to talk about the Financial Times. Every day, the world bombards you with endless headlines and noise. What matters most? Facts and context. That's where the Financial Times comes in. With clarity, depth and truly independent reporting, the FT helps you cut through the noise and see what's real and why it matters. Stay informed with the trusted source leaders around the world rely on. Visit FT.comSourceFT to read more and save 40% on a digital FT subscription.
- [41:34]
Scott R. Anderson
If you're a maintenance supervisor at a manufacturing facility and your machinery isn't working right, Grainger knows you need to understand what's wrong as soon as possible. So when a conveyor motor falters, Grainger offers diagnostic tools like calibration kits and multimeters to help you identify and fix the problem. With Grainger, you can be confident you have everything you need to keep your facility running smoothly. Call 1-800-GRAINGER click granger.com or just stop by Granger for the ones who get it done. Well, speaking of some interesting government regulatory choices, let us go to our second topic, and that is the TikTok deal or possible TikTok deal. We have gotten news of over the last week or two. As folks who've been following this know, as folks who've listened to the Rational Security notes, we've talked about it a number of times. Times we've had a statutory bar on TikTok more or less in the United States. It's a little more complicated than that, but that's a fair enough way to think about it, that the Trump administration has been withholding and forcing since entering into office in kind of 120 day rolling chunks to allow for further negotiations and discussions about efforts to get China to kind of relinquish ownership and control of TikTok in the United States instead of banning it outright, which was the consequence that Congress enacted into law. There's big legal questions as to whether the administration can do that. We've talked about before on the podcast. Now we have this deal and the Trump administration has rolled over the suspension of the penalties for another 120 days while the deal is finalized. Kate, talk to us what we know about this deal and what we don't know about this deal.
- [43:07]
Kate Clonick
Yeah. So this has been slowly percolating. And I think that the first news that we had of it was when Treasury Secretary Besant came out of some meetings in Madrid and said that they were close to a framework for a deal for TikTok. Whatever a framework, there was no mention of who the buyers would be for a number of days. And it was said that essentially that Trump and Xi were going to have a call about this at the end of two weeks ago on a Friday and kind of discuss coming out of that transcript of that call. We had still no details, but a clear kind of acknowledgment that I guess according to Trump's playback on Truth Social, that everything had been ironed out and that we were fine on going forward with the deal. But still no terms and no public acknowledgment of the buyer. Since then, we have gotten some additional details. We have the fact that the buyers of this are Oracle, Silver Lake and Andreessen Horowitz. Those are the three kind of of buyers. You might recognize Oracle as the company owned by Larry Ellison, who is a huge Trump supporter. Andreessen Horowitz is not exactly a fainting liberal. There is, you know, the liberal organization there is. And Silverlake is kind of an obscure VC firm. Not that obscure, but like obscure to like the public eye kind of obscure. And so this is who is behind. In the last couple of days, we also have heard that Rupert Murdoch and Michael Dell from Dell Computer Manufacturing also might take a stake in the TikTok deal. Of course, what everyone wants to know is not only who's buying our newest kind of like social media broadcaster, as we're coming to kind of recognize these things as, but what's gonna happen to the algorithm. The main concern, as you might remember for TikTok, not that anyone remembers back that far, because it was apparently 20 million years ago, even though it was only 2, that there was essentially a concern over the national security of TikTok and the giving of Americans data to the Chinese authority who controlled this algorithm and controlled all of kind of the functioning and the propaganda use and the private information of U.S. citizens. That was the pretext for this. It went all the way to the Supreme Court to determine whether or not this ban or this forced sale of the US based portion of TikTok, which is owned by a parent company, ByteDance, would be unconstitutional. The court said it wouldn't be. It was fine. And so right now we're just kind of at the phase of like the nitty gritty of the law, which has been bent to the point of breaking and not being even, like kind of like essentially like we're not even. We're off the rule book of anything that was written in the law at all. There was nothing in the law about 100, like 320 day extensions to find buyers or make a deal or anything else. And as Alan Rosenstein has said multiple times, there's actually no kind of clarity around what the deal has to be in order to allow TikTok to keep operating in the United States, although it does still operate in the United States, because of course Trump has just unilaterally told Pam Bondi not to enforce this law against any of the companies in which it would be forced against for keeping up TikTok. So the result is essentially that if this deal manifests, it has been reported that there will be clarity and I put that in scare quotes that you can't see around what it is that the. And it will be a US controlled algorithm and that TikTok will give that up and that. And that all that is needed legally is for Trump to say, okay, they don't need to bring this to Congress, they don't need to. And that's been misreported in the media a bunch is like, well it could still not. Like this deal could still not get approved by Congress. There's no need for congressional approval whatsoever in this. Like, that's just incorrect. The President just needs to say this is okay. And apparently this week we are expecting, I just saw like late yesterday, news that he, that President Trump is going to be issuing an executive order announcing this deal. Now the one thing I will also mention is we may never see this deal. We don't have, have knowledge of any of the law firm deals that like Trump cut or anything else. There's no visibility, there's no need for transparency in any of this. None of it's mandated by the law. So like this could, I mean, we just have no idea what it is that, what it is that this merger is accomplishing, what it is that this merger is supposedly solving, given the underlying animus for this, for, for the, for the Protecting American Freedom act act, you know, like that, that, that caused this, this act to happen in the first place. And so I'm just kind of like, I'm just kind of baffled and also just like the sheer lack of technical knowledge by everyone with authority to like talk about this has been unbelievably astounding and does not give me any type of confidence.
- [48:49]
Scott R. Anderson
So talk to us about what the actual concerns were and how this might or might not address it. So it's this question about control of the algorithm and as I've seen it, that TikTok US, this new US corporation is going to essentially lease the algorithm from China or the Chinese owner, I guess from ByteDance I should say that's partially owned by the Chinese government and therefore presumably exercise control over it. But we don't really have a sense of the terms of the control, is that right? And what does the lease arrangement mean? That strikes me as very strange for something that presumably you are going to control and be able to constrain and monitor enough to be confident that it doesn't tilt the output and direction of China's favor, which is the concern underlying the law in the first place.
- [49:35]
Kate Clonick
Yeah, I think that that's a great question, Scott. Any of those questions would be great to have answers to, but I don't know. I haven't heard the term lease. I've heard the term licensing that, I mean say like potato, potato, but the licensing of the recommendation algorithm, algorithm and then Oracle's supposed review, monitoring and secure like and security of the US data that is flowing through the service to that algorithm or getting, being used in that algorithm. I have no idea why this would take the control that the Chinese have over the algorithm away from the Chinese. That like, 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 like fixed in this, in this. You know, if you're, if you're licensing their algorithm, they still make the algorithm like, I guess in theory they still have all our data. Like there's no need to even like, you know, use TikTok when this is something that we, you know, is for a different day. But it just, it does seem like a lot of smoke and mirrors and performance around words that, and words that basically are like, we'll say that we control it or you control it and you can license it, but no, and people don't actually know what it is the terms of this license mean or how, I mean how often are they, I mean how often do you run out updates in an algorithm? It's a constantly, at least currently, it's a constantly changing, constantly informed thing. Like it's not as if it's auditable, it's not an explainable concept. And so like I just kind of, I have no idea what it is that this, that this is giving us and I don't think anyone has, has said so. I mean that's, you know, I think that all of your questions are good ones.
- [51:40]
Eric Columbus
I mean is the idea that the Chinese would still continue to control the algorithm and the new TikTok US would just be able to use it, but as you say, it's, it's a, it's a living thing in algorithm and it would constantly need be changing.
- [51:53]
Kate Clonick
Yeah, that's not like Percival, like what you just said is like, yes, that's like, it just doesn't, it doesn't make sense. And so like, but this is like, by the way, I mean this is a larger conversation, Scott, that we, you and I could have or anyone could have about like this, this farcical kind of, of call for algorithmic transparency or algorithmic control or let us see the algorithm or blah blah, blah, blah blah. That like has kind of happened in the last, you know, been happening for the last eight like years essentially. And they're, they're, they're nonsensical kind. They're math equations that are not particularly explainable. The idea of knobs that like you turn on these things is like, like there's this absolutely vast oversimplification of this. And like the details on this are just so sketchy. There's like, it says that the license is going to be retrained with US data, but like that doesn't make sense. Like, the algorithm is always, like, like the algorithm is always going to be training on the data. So like, I don't understand. Like, it's already training on U.S. data. So you're just telling us that it's retraining in U.S. data and that it's. Now you're watching it. And so like, but you, you could have watched it before. Like, I don't know. None of this makes sense. I'm also here to say that, like, as a person who spent a lot of my life thinking that I just didn't know enough to like, question these things. And I was like, oh, yeah, that sounds good. Like, sure. Like now we'll like, determine whether we have like this ability to control, control this algorithm or see these things. It's just if your impulse is like, this doesn't make sense, I don't understand it. The answer is because it really doesn't make sense. Like they are just. This is a completely manufactured performance that is taking place.
- [53:38]
Scott R. Anderson
I want to turn the attention because I think we've done a good job identifying a lot of the questions that one should have about this deal. That's still, again, the details are still being worked out. That's why you have another 128 days for according to the administration. Administration. But it does raise this question that Kate, you really highlighted really well, which is because what the administration has done is to essentially withhold enforcement of the penalty, apparently at its discretion. It's not clear why this deal has to be reviewed by anyone but the president. So Congress obviously has an interest in this issue, although it's one that's kind of flip flopped a little bit over the years. Its position, at least from initially enacting law than we saw congressional leadership flip flop on whether they actually wanted the law to be enacted after a court decision when the President came out. I think it did a lot of damage to the law at that point. But Eric, I want to come and ask you about this. What avenues, as somebody who's a Congress watcher, I know with experience in Congress, talk to us about what avenues of leverage you might see Congress might have on the table to be able to use to get more information about this deal or even disapprove of it if they don't like it and how likely those seem likely to be brought to bear, how easily they're brought to bear in this particular case, whether this Congress or I guess the next Congress, if the partisan composition is a major obstacle.
- [54:55]
Eric Columbus
Well, at the simplest level, Congress could pass a law now amending the law to require the President to do different things for a deal, to require a deal be approved by Congress, to require more transparency about an algorithm, or to require greater actual divestment from Chinese control. I think we all know those things are unlikely to happen because this Congress has not pushed back legislatively against Trump at all. In the next Congress, assuming this is likely, that Democrats take control of one House, they could subpoena the president or relevant agencies for information about the deal for, for its texts, could possibly bring people in for depositions or transcribed interviews. And the question then becomes to what extent the administration resists that. And I can't really think of valid bases to resist, but that hasn't stopped them in the last term when it was controlled by Democrats during the second half of the Trump administration when the House was controlled by Democrats. And, and they may be even more recalcitrant this time around.
- [56:15]
Kate Clonick
I mean, I'll just point out one more just in terms of like, this doesn't make sense. You're not crazy. It doesn't make sense. It's just that like Carolyn Levitt also like kind of said and like from the White House that this would not change the user experience for users in the US at all on TikTok. It should change the experience. Like if the entire point of this is that you're taking resting control away from the CCP and the nefarious things that they're showing, showing you and the, the things that they're doing with your data to train your algorithm and group think you into whatever imposing this like this should change the, like all of this should change the experience. But that doesn't. So the idea that this is like, I mean just to further kind of just say that this is and the true unparsable and kind of like, you know, now you see it, now you don't. Great, like imaginary TikTok deal is, you know, this isn't like what I learned there was no part of Schoolhouse Rock when like the bill becomes a law that like was like, and then the president sticks it in a drawer and decides that he's not going to order enforcement on it unilaterally for like multiple hundred and twenty day periods while he makes deals with his good friends to like then meet the requirements of the bill. I mean this isn't like, you know, we're just off the script here. So there's, you know, this is, I mean, I guess why are we surprised that we're off the script here where we're off the script everywhere else I.
- [57:49]
Eric Columbus
Would just add one, one quick thing is that there's also, as Kate mentioned, that it's the reported purchasers are a bunch of right wingers. And is this Trump just shoveling money to his friends or is the expectation that they will be tweaking the algorithm to reward right wing views and punish left wing views? Now, that may not make financial sense under normal circumstances for those investors because TikTok appeals to youth who are probably more left leaning than right leaning. But if they do that, it's this feedback loop like Trump gives them something benefit and then they tweak it to make it more right wing in the hopes that they could get even more money from Trump because they've he is so twisted their market incentives.
- [58:34]
Scott R. Anderson
And that'll go back to the question of to what extent are they going to control the algorithm, which is the big outstanding question that we still have out of this. Speaking of outstanding questions, let's go to our third topic as we're running short on time today. And that is this question of purported what some would call corruption happening in and around in some states. A few weeks before the Trump administration, we had a big story come out this week about the Justice Department under this administration refusing to go forward with an investigation or prosecution of Tom Homan, the immigration czar at the White House, who's alleged to have taken $50,000 from undercover FBI agents before entering into the administration. But at an era where it seemed clear he's going to have a senior role and on the understanding he would help steer business contracts and other interests to the people who paid him. That comes just a few days after another major story where we saw the UAE chip deal. The deal where the Trump administration reversed the Biden administration restrictions on chip exports to allow the UAE to export chips happened to coincide with a big cryptocurrency deal that benefited the Trump Organization and private businesses held by people within the Trump administration, including Steve Witkoff, the kind of chief negotiator, at least one of the chief negotiators of that deal. It's a pretty dramatic set of stories, and it's not the only one. Remember, the White House also came under heat just a few months ago for essentially holding a White House dinner for people who bought the dollar sign Trump. You know, meme cryptocurrency, which a lot of people had a lot of people claiming is essentially, you know, holding a poor pay for pay to play event at the White House. It's pretty remarkable. But it's one of these things where in the first administration with the Trump Hotel. We saw a lot of litigation around this. We saw states, cities, competitors line up to challenge the Trump administration's management of the Trump Hotel, which a lot of people said accused it of essentially taking kickbacks, emoluments, foreign and domestic at that state. We're not seeing that this time. Eric, I kind of want to start with you on this case. You can start with the Homans case and we can spread out to the other ones. Talk to us about what your reaction was to this case. I know you did some digging into it a little bit about what your sense is about how inappropriate this might be or whether this story may be a little more smoke than fire.
- [60:49]
Eric Columbus
Well, the allegation here is that Tom Homan was approached by undercover FBI agents who, who had been tipped off that in the course of a separate investigation they'd been tipped off that Tom Homan was kind of basically soliciting money during 2024 summer when it was clear to everyone that he would get a plum job in the Trump administration, that he was soliciting money to steer government contracts to people who ponied up. And so the FBI agents gave him $50,000 in a bag from Kava, the fast casual chain, and then nothing happened. They did not, the FBI did not, doj, did not attempt to prosecute him during the Biden administration in the early and then reportedly the investigation was shut down during the Trump administration. And Tom Homan did in fact go into the Trump administration. He is basically a White House official. I don't know what his title is. He is sometimes referred to as the border czar. But he is believed to have a very heavy role in immigration policy along with Stephen Miller of the White House. Now, he went on Laurie Ingraham's show a couple days ago and say he did nothing illegal or improper, which is very different from saying, I did not accept $50,000 in cash. So it's possible actually that, that he's right about not having done anything illegal because the way that the bribery statutes are constructed, and this was a point that I was made by Ken White recently, who is a defense lawyer and First Amendment lawyer in California and a former federal prosecutor. It basically criminalizes taking money in exchange for promising to do an official act act. And it's not clear that Homan, in the job that he would event that he eventually did get in the White House, has the power to do official acts. It's largely an advisory role. He cannot say, I approve this contract, I disapprove this contract. If he Even made the head of ice. It might be a different story. Still, still, it's wildly inappropriate to be taking cash from people who want favors from an administration under any normal circumstance. That is someone who you would not want in your administration. But as is so often the case, it is unrealistic, let's say, to expect the administration to punish people for saying or doing things that basically the president says and does all the time. Yeah.
- [63:45]
Scott R. Anderson
And you know, an interesting point I can't whether somebody made on Slack, it may have been you, Eric, but about why they may not have brought charges early on during the Biden administration beforehand is because they wanted to get clear quid pro quo, see some sort of action that Homer had actually taken when he came in office. But perhaps unsurprisingly, although you know, not ideally the Trump administration that want to go forward with that other administrations might have been, you know, we've seen other administration's or at least they may have used this as a reason to not put Homan in a senior White House position if they became aware of this investigation. But that didn't happen in this case. Kate, I want to turn to you on the crypto side of this talk about why crypto has come to play such a prominent role in this administration and particularly in the Trump Organization's activities they're pursuing kind of adjacent to their official governmental rules.
- [64:34]
Kate Clonick
Yeah, well, I mean it is an unregulated market working. And so it is very much kind of a new wild west of not a new wild west. 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 and ease of hyping it. The ability to possibly bring stability or regulatory control to a cryptocurrency, be it through a stablecoin or any, any other type of introduction of cryptocurrency into formal markets and regulatory systems is an incredibly powerful, powerful tool. It has made the value of a lot of coins go through the roof under Trump because this is just, just, you know, he has ostensibly has touted the power to kind of do this. And it also just is unregulated in the sense that just so much it's not clear at all how you, there's no 50, there's no $50,000 in a bag. Like it's all kind of, it's, that's the biggest thing. There's no, I mean the entire beauty and horror of cryptocurrency is it's relative untraceability. And I say Relative, because, like, it is not quite as, as, as quite as untraceable as people claim it is, but it is still relatively like, it is still kind of a rel. Especially like the earnings that you're making off of it, if you have your own coin, are still relatively like, not required under public disclosure laws. And so it's just an immense mechanism for corruption. And there's no. But there's also. So it's immense mechanism for corruption because it's not even imagined in any type of regulatory control we have for corruption. You know, we have rules for money in a bag, we have rules for self dealing, we have rules for, for insider trading. We have securities fraud, which is everything, if you ask Matt Levine. But like, there is just generally kind of like all of these, you know, we have all of these rules. We don't have them for this. And this is, you know, both. This is something that Trump and all of, most importantly, all of Trump's family members are very, very, very, very leveraged in to the max. And especially when it comes to national security and dealing with the Middle East.
- [67:13]
Scott R. Anderson
Yeah, it's really absolutely fascinating. And one other aspect jumps out at me. I think I've mentioned this on podcast before, but it's a pet theory Ben Wittes and I have been working on a little bit, which is that during the first Trump administration, the big focus of a way the Trump Organization tried to profit off the Trump presidency was the Trump International Hotel and assorted other kind of like licensing deals around the country, kind of playing off the brand name. There's a little bit of that still happening, but those became the subject of particularly emoluments litigation. Litigation trying to enforce the parts of the Constitution that prohibit the acceptance, acceptance of money from outside foreign powers and in various domestic contexts as well by public officials, including the President. This was none of these cases. While they never actually came to full fruition during the first Trump administration, a few of them did survive all the way through senior appellate courts before they eventually were kind of rendered moot by the fact that President Trump lost the 2020 election. But the theory that they operated on was one of competitors. And that's a lot harder to do when you're talking about things like cryptocurrency, because to be a competitor, you got to show that your individual business interests were harmed by the illegal competitive advantage of another. Now, maybe somebody selling one meme coin could make that argument about the dollar Sign Trump. I don't know how to say that otherwise. Dollar Sign Trump meme coin. Right like, you could have an argument there, but it's so much harder to show correlation and relationship there, because who knows what the baseline is for a meme coin selling and a particular rate or value. And particularly when you're talking about these industries where you don't have conventional conceptions of business operations and where they're essentially pseudo commodities being traded like instruments of value themselves that don't have underlying value. The value is, especially with meme coins, like, essentially cultural. The UAE deal, notably, was not just about meme coins. It's about a variety of other crypto, more conventional cryptocurrencies. But regardless, it's just, it is a super harder. I think it's a harder environment to show colorably the sorts of claims you would need to show to establish standing, and then perhaps even more importantly, the people who would be in a position to do that are all part of the crypto industry that has really looked at the Trump administration as a savior. And where there's a strong cultural cache there, it's not universal. I have friends who are very into crypto who, who are not super into President Trump, for the record. So I don't want to paint everybody with one broad brush, but need to say the big actors in the crypto space have really sidled up to the Trump administration because of its laissez faire approach to regulation and general pro crypto outlook. So it's a really tricky situation, but it makes a lot of sense if you are learning from the experiences of Trump 1.0 about how the challenges you faced, even though they never really came to fruition, but the potential risks you face, faced and pushback you faced in that case, this is a good way to avoid a lot of that, I think.
- [70:11]
Kate Clonick
Yeah. Can I just make a pitch if people want more reading on this? Because we should do maybe an entire show about the crypto and have maybe like Eric, I was going to say there are two New York Times reporters who have just been outstanding on kind of reporting out all of this and how this is being leveraged specifically in the uae for those interested in kind of the national security hook and all of this, and that's Eric Lipton at the New York Times and David Yaffe Bellany. And the, the reporting that they have been turning up is just outstanding. They're like going and they're getting the receipts and who may might never matter, might never, might never ever, ever matter. But it will be, it'll be a tremendous. It is, it is horrifying and fascinating to watch. It also, like I have to say, not to get super philosophical but to you know, if we're going to of kind. Kind of it really does kind of like make you recognize two things. One, just how incredibly market philic and money philic. This entire administration and this entire like in a way that is just unparalleled that we've just never ever seen before. I mean the adage is, you know, like, you know, US loves the markets and hates the gut. Like is fears the government control in Europe, like loves the government and doesn't trust a market. I mean this is. But this is like I never in ev. In the history of, you know, America have we. Have we trusted and just used markets and capital in this way before. And it's really kind of just the, the size and scale and scope of the UAE thing has really kind of put a, put a pin in that for me. And then the, the last thing that I'll say is just kind of of the ability for technology to create a semi like to create a new. A new currency system is. Is just. I mean it's a reminder about how much money's value is made up period, you know, you know, in general. But it is also just kind of. It is the cat and mouse is so necessary and the cat has gone on vacation to. Or is like flying around in his, in his jet, but there's no, there's no cat. So there's a lot of mice and everyone's eating cheese and. Yeah, we'll see. We'll see what happens.
- [72:34]
Scott R. Anderson
Well, I think we'll have opportunity to circle back on the story in the future, but for now we are out of time. But this would not be rational security if we did not leave you with some object lessons to ponder over in the week to come. Eric, what do you have for us today?
- [72:46]
Eric Columbus
I have a. Today is the. The second day of Rosh Hashanah, the start of the Jewish New Year. And I'm Jewish and I recently read a. I very rarely read novels but I recently read one called To Rise Again at a Decent Hour, which is a novel basically about three Judaism, baseball and dentistry. And I have great interest in the first two of those topics and interest knowledge and none at all about the third. And I found it to be kind of fascinating. It's a little bit, a little bit of Philip Roth in it by Joshua Ferris. It's just who has written a lot of other novels that I hope to get around to reading about a kind of middle aged male protagonist going through a bit of a midlife crisis which of course, naturally appeals to me. Other topics aside and I think if you're.
- [73:46]
Kate Clonick
If.
- [73:47]
Eric Columbus
If those. If two. At least two of those three topics appeal to one, then I think it's. It's worth reading.
- [73:54]
Scott R. Anderson
Awesome. That sounds a great, great recommendation. Well, for my object lesson today I am going back into the concert file as my wife and I with our daughter at little older have been able to get back out to some shows in D.C. but there is one upcoming that I want to make sure people are aware of and if you're in the D.C. area, consider coming out and joining. I have sung the praises of Katy Peru it on this album before. Not adequately well known rock Americana with like a little country angle. Singer songwriter, but not really singer songwriter. It's not like it's like acoustic or anything. This is like actual real rock songs. Like she's got a whole EP of really phenomenal Neil Young covers that is definitely worth checking out. She is coming to D.C. for the first time in a while and she's actually headlining her own show which is great. She was here for an opener like a year or two ago but openers never get the sound treatment and balancing everything they deserve. So opening acts just never sound quite as good as I wanted. I really enjoyed that show but I can't wait to see her actually headline. She's coming to union stage October 14th. Tickets to scene to be available. It's a small venue. I think it's gonna be amazing show again. She is like does just epic, epic rock. Hooks and guitar work and vocals are really amazing. Her first album expectations still my favorite albums I've listened to in a really, really long time, like years at this point. I think it came out in 2020. Her second one's pretty good too. I love her first one. So if you're in dc, come check it out. Throw some support Katie's way because she's phenomenal and I'm shocked. Their tickets are still available for the show but you should get on it while you still can. And you will see me there because I will be there rain or shine, assuming I can get a babysitter. But so far. But we're optimistic on that front at least. Kate, bring us home. What do you have for us today?
- [75:29]
Kate Clonick
I have a Blue Hippo Wonderful That I just took off my shelf. It is souvenir that my mom got me when we were one of my first trips to France and to Paris when I was in college and we went searching for a blue Hippopotamus which was one of the best uses of indigo ever in ancient pottery from Egypt. And we did not speak sufficient French. And we walked around the Louvre stuff. Oo est le bleu hippopotamu. Oo est le bleu to every, like, guard in this horrible accent. And we got. It took us, I think like over an hour to find this. And it's like, not even that, it's like lovely, but it's not that great. And so anyways, when we were on the plane home, my mom got me this little blue hippopotamus that she had gotten at the gift shop, which was much easier to find, I suspect, than the actual one in the Loop.
- [76:27]
Eric Columbus
And yeah, you can find that hippo actually at the Metropolitan Museum of Art, which they call it William for some reason. And it's become like a big symbol of the museum.
- [76:38]
Scott R. Anderson
Wonderful. Well, a wonderful suggestion. A little culture, a little art, a little bit of everything here on Rational Security. But that brings us to the end of this week's episode. But remember, Rational Security is of course a production of Lawfare. So be sure to Visit us@lawfairmedia.org for our show page with link to past episodes for our written work and the written work of other Lawfare contributors and for information on Lawfare's other phenomenal podcast series. While you're at it, be sure to follow Lawfair on social media wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast and other special benefits. For more information, visit lawfairmedia.org support our audio engineer and producer this week was me of me and our music, as always, was performed by Sophie and we are once again edited by the wonderful Jen Patcha. On behalf of my guests Kate and Eric, I am Scott R. Andersen. We will talk to you next week. Till then, goodbye. Hey folks, it's Marc Maron from wtf. Today I want to talk to you about Boost Mobile offering reliable nationwide coverage backed by a 30 day money back guaranteed. Love your service or get your money back, no questions asked. Boost Mobile offers the coverage, network speed and service you're used to, but at more affordable prices. Why pay more if you don't have to? You can get an unlimited plan for $25 a month that will never increase in price, ever. No price hikes, no multi line requirements, no stress. Visit your nearest Boost Mobile store or find them online@boost mobile.com After 30 gigabytes, customers may experience slower speeds Custom will pay $25 per month as long as they remain active on the Boost Unlimited plan.