Molly Roberts (2:40)

Do you e bike or regular bike?

Tyler McBrien (2:42)

I usually. Well, I have my. If I'm on my bike, I'll have a road bike, but I usually will e bike. But some days I feel like either everyone is trying to kill me or kill themselves by jumping in front of me or, you know, it's just like a. Yeah, it's not an ideal biking city, I would say.

Roger Parloff (2:58)

I was a moped messenger in Manhattan for six months. That was a very. It was a fun and a dangerous job. There were times when I was the only. There were about seven of us, eight of us. And there were times when I was the only one who did not get in an accident so severe that either they or the bike could not continue going.

Molly Roberts (3:24)

No city is safe. I. I've been hit by a car on my bike here in D.C. this woman kind of turned into me and she did, to her credit, pull over. And she got out of the car and she came up to me and she said, I've never done that before.

Scott R. Anderson (3:40)

Thank God.

Tyler McBrien (3:43)

First time for everything.

Scott R. Anderson (3:51)

Hello, everyone, and welcome back to Rational Security, the show where we invite you to join members of the Law Fair team as we try to make sense of the week's biggest national security news stories, whether they are in our lanes or not. I am your host, Scott R. Andersen, Thrilled to be back here this week to dissect some of the week's big news stories with a panel of my colleagues. Joining us once again on the podcast, a couple of podcast mainstays. First up, we have law firm managing editorial Tyler McBrien. Tyler, thank you for coming back on the pod.

Tyler McBrien (4:18)

Thank you for having me, as always.

Scott R. Anderson (4:20)

And joining us again for the nth appearance. At this point, we're officially in the end stage, meaning it's large scale. It's a legitimate sampling size. We have Molly Roberts, senior editor here at Lawfare. Molly, thank you for coming back on the pod.

Molly Roberts (4:32)

Thank you for having me.

Scott R. Anderson (4:33)

And joining us for the first time in a long time, but far from his first time. It's got to be at least in a half dozen at this point. We are joined by a Lawfare senior editor as well, Roger Parloff. Roger, thank you for coming back on the podcast.

Roger Parloff (4:43)

Great to be back, Scott, Excellent.

Scott R. Anderson (4:45)

Well, we have a couple of stories here on the home front, one of which crosses the seas, touches on foreign affairs as well. We're going to be talking most about the domestic legal side of it. So let's dig into our stories for this week. Topic one, Jim, spells seashells by the seashore. Former FBI Director James Comey was indicted again this past week, this time for allegedly threatening the life of President Trump by spelling 8647 in shells at the beach and posting an image on social media. It is a ludicrous argument. We can take that as a given as the premise from one of the segments. So what does it tell us that acting Attorney General Todd Blanche appeared willing to file it and pursue it, even where perhaps Attorney General Pam Bomdy was not? And where does this mean Trump's broader vengeance campaign seem likely to go under whoever becomes the next attorney general? Topic two, we were on a break. Little throwback to my elder millennial colleagues and friends out there. I don't know if anybody else got that reference. Maybe they still do. I hope friends are still in the zeitgeist. The Iran war turned 60 days old last deadline by which, under the War Powers Resolution, the president was supposed to wrap up any congressionally unauthorized military operations. But like many of his predecessors, President Trump has done no such thing. Instead, his administration has argued that the 60 day cutoff was already met by the ongoing ceasefire and related break in hostilities, even though the Trump administration has continued its embargo of Iranian oil resources and just began and then as of this morning, suspended a major new maritime campaign to open the Strait of Hormuz, one that triggered hostile exchanges with Iranian forces. What should we make of the administration's arguments? And do they suggest that the War Powers Resolution is a dead letter? And topic three, strictly ballroom. The Trump administration is actively working to capitalize on the recent assassination attempt on President Trump to push, and I should say several other senior administration officials to push a federal court to allow its construction of an East Wing ballroom on national security grounds. At the same time it's faced new judicial headwinds in its quixotic effort to take over a municipal golf course here in Washington, D.C. the same location where it dumped the potentially toxic rubble of the demolished old East Wing. What do these cases tell us about Trump's broader efforts to reshape our nation's capital? And how legitimate is the Trump administration's new effort to tie these cases, particularly the ballroom case, to national security? So for our first topic, Molly, let me Start with you on this one. We have lived through one attempt to prosecute former FBI Director James Comey. It was the focus of a lot of our conversations here on rational security within lawfare in the broader zeitgeist towards the end of last year. I can't remember exactly when it wound out. In the beginning of this year. That case focused on alleged false statements that the director was alleged to have made before Congress, but ultimately fell apart in part because it was not brought until right at the end of the statute of limitations or purported statute of limitations, and was brought by Lindsey Halligan, who in her capacity, purported capacity as acting U.S. attorney, did not actually have the legal authority to bring the sorts of charges and have been appointed properly to take the sorts of steps necessary. That was among other potential challenges we expected it to face, but that's the one that ultimately did it. Now we have this new effort. Talk to us a little bit about what we know about what led to this new indictment of the former FBI director, how it's being received and responded, how it may have been viewed by folks within the administration because it relates to actions that took place very early in the Trump administration, the second Trump administration, I should say, and what we should make of it.

Molly Roberts (8:12)

Yeah. So what led to the indictment really seems to be that James Comey went on a walk on the beach and as he tells it, saw some seashells spelling out 8647. And he says he saw them. He says he didn't put them in the formation. Found that amusing because that means. And there's plenty of merch being sold that has the same slogan, get rid of 47. The 47th president, Donald Trump. And he posted it to social media saying something along the lines of, saw an interesting shallow formation on my beachwalk. Pretty much immediately, a lot of people freaked out online and said, oh, you're calling for violence against the president. He took it down, said, sorry, didn't realize anybody could think that's violent. And my view is, how could anybody think that's violent? There were a lot of people saying the same thing about Biden during the first Trump administration. And I don't think there was a ton of reaction, certainly not from Sorry. Not during the first Trump administration, during the Biden administration. And I certainly there wasn't reaction from the administration saying it might be violent. Comey got rid of it, but an investigation did begin back then. He said, sort of hope it goes away. And it looks like it did go away for a while, until Pam Bondi was fired. Todd Blanche took over. The pressure got dialed up even higher to bring charges against Trump's political enemies. And they went ahead and they got an indictment on two counts for this being essentially, it would have to be a true threat of violence against the president. So that's what had happened. It sounds ridiculous and it is ridiculous, and it has widely been received as ridiculous, largely because, well, I guess the place to start would be, does 86 even mean that Trump is out there saying, if you watch the mob movies, it means kill. It's eight miles out and six feet under. And then you go and watch the mob movies. And nobody says that, that I have seen in them. I don't know if anybody else has an example of a mob movie where that happens, but it's nothing like Sleeps with the Fishes. And I was doing, trying to do a little digging for any media where it means that. And the only thing that I found was in the remake of Little Shop of Horrors, the Killer Plant uses it that way. I don't think that, you know, Trump was thinking about. About Little Shop of Horrors.

Scott R. Anderson (10:39)

So in any case, he does love musical theater. I don't think we can rule that out entirely. That's fair.

Molly Roberts (10:43)

But I feel like he's more. I feel like he's more of an Andrew Lloyd Webber guy than Right. Like, I don't know that his tastes run. Run in that direction, but I could be wrong. I could be wrong. Maybe I'm not being fair to him. That was a dig from me at Andrew Lloyd Webber. To be clear, we don't know what

Scott R. Anderson (10:59)

those cats are saying half the time anyway. They could have easily worked something like this in there. It's totally plausible.

Molly Roberts (11:03)

He's kind of the cats president. But I digress.

Scott R. Anderson (11:06)

That's a topic for another day. That's a topic for another day. Molly. I like this, though.

Molly Roberts (11:10)

In any case, then it would get to. Even if that did mean kill him, would this count as a true threat? Which I think is a strained legal argument, too. So that's kind of where we are. And there's the same issue that the initial Comey indictment would have faced. So you have this huge First Amendment issue, but then you have this other issue of selective or vindictive prosecution because there are so many other people who've posted this 8647. And in fact, Todd Blanche said over the weekend, no, we're not going to prosecute them because there are way more facts here that you're not familiar with. And I can't tell you what was presented to the grand jury, which that's true. But when we have the trial, you're going to hear all about it and the rebuttal to that. And Adam Schiff framed it exactly this way when he was talking about the indictment as well. The difference, in fact, is that Comey is a political enemy of the president. So I think that's the more or less the rundown. I'm sure there's more to be said about it.

Scott R. Anderson (12:11)

So, Roger, I want to come to you on one aspect. I want to get to the vindictive prosecution bit in a minute, because that was kind of the issue set hanging over the last Comey indictment, hanging over the Letitia James indictment, a bunch of these other efforts by the Trump administration. It's still very much still alive and still there. But let's talk about this First Amendment aspect of this. You know, there's one case really squarely on point. I believe our colleagues Alan Rosenstein and Ben Wittes actually wrote about this Shortly after the 8647 story broke regarding Comey last year, like, I think in May or June of last year, as I recall. And the case is like, shockingly on point and direct about this, where there was charges brought against individual who said, I think in relation to him joining the army, as I recall, the first person I want to get in my sights is lbj, referring to the president at the time. And the court basically said, look, this is clearly just political hyperbole. There is no actual intent here. That's where the, I think, I believe that's where the actual threat standard comes from, or at least as a case we strongly associate with it in relation to this line between where the First Amendment gives way to legitimate space for criminal prosecution. To say that the Seashell situation is a less legitimate or actual threat than saying as a service member, if I recall the case correctly, the first time I want to get my heights is lbj. I, I totally believe that soldier was being totally hyperbolic. It's hard to see how you can't reach the same. Any other conclusion in regards to what Comey was intending here, especially because the language is ambiguous. I mean, we do say things like, oh, I mean, I'm going to kill him. I was going to murder this and murder that. We use this in our vernacular and we don't mean it literally the vast majority of the time. And it's usually not as quizzical as this 8, 6 frame, which I will admit as a, you know, I guess not very online these days, I'm being completely Honest, but like middle aged dude who still mostly knows what people are saying most of the time. That was not slang or shorthand that I was remotely familiar with before this whole story broke one way or the other. I would honestly just have, I would never even occur to me that that was about the President. If I saw 8647, I would think that'd be a weird address that somebody's throwing out there. So. So Roger, like do we have a sense about how this case they think is going to get over this first amendment hurdle? And in particularly like how do we think they got an indictment on this? I mean I suppose in the indictment process these constitutional because one sided aren't really framed out. Although I actually think there would be like some sort of judicial instruction on some constraints here potentially. Or am I wrong about this? I have admittedly never dealt with a grand jury. So talk to us about what we know about how this case was even brought forward. Given that it's real first amendment questions it raises and then how they think it's going to proceed.

Roger Parloff (14:47)

Yeah, we don't know yet. I suspect that one of the first things his counsel will try to do is to get those grand jury minutes and see what the instructions were. In addition, there's this recent case, the counterman versus Colorado case from 2023 that talks about true threats and there's language, there's a gloss in there that will be an additional hurdle. That it's not just, I mean I think what you say just on its face, is there too much ambiguity as a matter of law for this to go forward just even before you reach the vindictive and selective prosecution? I think that's going to be a legitimate issue. But then there's a second hurdle, the Counterman case. And just to give you an idea, I mean the facts of this case of counterman will tell you what a real true threat is. And that the court would consider this ambiguous. Gives you an idea. You know, compare that to shells. This was somebody that wrote hundreds of Facebook messages to a country western singer that he didn't know. And some were benign. But eventually when she ignored her, they got less benign and they, they indicated that he had seen her on the street and then they said fuck off permanently staying in cyber life is going to kill you. That's not, not very ambiguous.

Scott R. Anderson (16:25)

Yeah, definitely much more threatening than seashells or the service member mouthing off about killing the president, if we're being honest.

Roger Parloff (16:31)

Yeah, you're not being good for human relations die. But even then there's a First Amendment hurdle. And the question was, what subjective. Can you just base the thread on the objective nature of the words themselves and how a reasonable person would receive them? And they say, no, there's got to be an intent element. It's not. And it doesn't have to be willful, but it does have to be reckless. So it's conscious disregard of a substantial and unjustifiable risk that his conduct will cause harm to another. So that's another hurdle. Can you read that into it? That he had a reckless disregard for the fact that a reasonable person would regard 8647 to be a true threat? I think it's too much. There's another question, because that language, that gloss, is not in the indictment. I asked our former colleague James Pierce, who's an appellate criminal lawyer, about that, and he actually thought, no, you don't have. You don't ordinarily have to put judicial glosses into an indictment. Usually the statutory language is sufficient. You would be supposed to read that to the grand jury. But even that often an error, an instruction to the grand jury is not sufficient to dismiss because you'll have a chance to correct that with the Pettit jury. But I think all of that together does suggest a big. Some big hurdles in addition to the selective and vindictive prosecution before you ever get to a jury.

Tyler McBrien (18:24)

I mean, I know we haven't spoken in detail about the selective and vindictive prosecution yet, but take the First Amendment challenges that you just raised. I assume Acting Attorney General Todd Blanche also knows this, what you're saying. And, you know, I guess setting aside that he. There are some facts that we don't know yet. I'm curious, honestly, what everyone thinks, what we can take from this about Todd Blanche and his motivations here. He seems to me to continue to be acting like Trump's personal lawyer and giving him a zealous defense. Obviously, this is a much. It just. I'm scratching my head at this. And then also, as a kind of a secondary question here, what can we make of Pam Bondi's tenure in her not bringing this case? I don't know.

Roger Parloff (19:13)

You know, all along, there were people that were telling me, you know, Pam Bondi, because I had formed a dim view of her, that, you know, that there might be conversations going on in the background and where she was holding things back. And that became increasingly impossible for me to believe as Comey was indicted the first time and. And other things happened. But it does look like I sort of owe her a Half apology. I do think she destroyed the department and she let too much happen. But it does look like she was a break on some of the more preposterous things. The SPLC indictment, the actually, I can't remember now, the timing of Jerome Powell, but certainly this one is the most extreme. And, you know, they've got this even Pam, well, Pam Bondi for sure, they have this excuse that, you know, well, they take the oath to uphold the Constitution, but their view is and Pam Bondi sort of spelled this out in her first memos, you know, whatever the president says is his interpretation of the Constitution. And our job is to be his lawyer and defend that. And that's an abdication of your oath. But that's what they do. And obviously Todd Blanche is more militant in terms of just doing whatever this guy wants.

Molly Roberts (20:49)

Yeah, I'm not quite ready to say Pam Bondi, American Hero, but I do think that you have to give her the teensiest, tiniesiest bit of credit. When looking back on what happened over the course of her tenure and what's happening now, what is kind of interesting or perplexing to me is surely Todd Blanche knows this isn't going anywhere. And so I suppose my question is, is it enough for Trump that they're trying to, when Trump asks for this, does he believe, because he tends to think that everything is going to work out in his favor and that he's sort of invincible, does he believe that it's going to succeed even though it's totally implausible, that it would? Or does he just want to make his political enemies lives sort of a living hell? Does he want to keep dragging them into court? And then in the end, he can blame it on a radical left judge when it goes wrong, when they fail to get an indictment, he can blame it on bad grand jurors when it goes wrong. And sort of same thing for Todd Blanche in that latter point is his thinking, well, even if ultimately I fail, I satisfy the president by trying because the president will then just blame it on the radical left judge if it goes wrong. That's sort of what I wonder.

Tyler McBrien (22:09)

Yeah, I think there he has competing preferences often and for the people in his court, for lack of a better term. And I think those two affinities are for winners and for absolute loyalty. And I think he overall would prize the latter. So I agree with that. Reid.

Roger Parloff (22:26)

And just to reinforce what Molly just said, you know, in his, one of his books, he used to talk about using civil litigation to punish opponents regardless of whether you could win the case, I mean, you are inflicting costs and. And of course, he didn't have the power back then to use criminal cases, but it's that much more cost that you inflict. And I think that's sufficient for him. As long as you do that, it's deterrent enough for people to exercise their First Amendment rights.

Scott R. Anderson (23:08)

Yeah. Another thing that you've seen the President hone back on in some of his personal writing statements is also the kind of give as you get sort of philosophy, the eye for an eye. I fully buy that there's like some part of this in this rationale here. I mean, I think that the President genuinely thinks he was targeted. Now, look, the President did some illegal things and I think violated the law. Particularly look at the Mar A Lago case. The obstruction case around Mar A Lago was very strong. I mean, I'm slightly annoyed, frankly. The Justice Department in the last administration didn't just focus on that and got sucked into the, you know, maelstrom of all these other much more politically charged cases. They're very clearly was obstruction that the President was directly involved in around the investigation of the presidential documents. The issue is that I fully believe, subjectively the President thinks these are people unfairly going after me and that A, I want retribution, B, maybe this is part of the system. Right. They came after me and I'm going to come after them and level the same charge. And I think that's part of the reason you see this sort of like parallel systems of retribution. Like the people he seems most intent on targeting with these things are people that were involved in some of these legal efforts. So it's just a sort of aspect. Now, you can question saying even if you disincerely believe that an eye for an eye is a little bit of a brutal philosophy, especially when you're talking about taking advantage of the legal system and using it in ways that do not seem consistent with the President's general sense of constitutional duty or most President's sense of constitutional duty. But I don't think that really is the framework through which the President views these things. But I do want to go back to Todd Blanche. Maybe I hesitate to call this defending him, but I want to contextualize some of his behaviors. Right. Like Pam Bondi had one advantage over Todd Blanche. She is the confirmed Attorney General. And while as evidenced by Pam Bondi, that doesn't mean you're destined to that job forever, it does give you a little bit of insulation to push back on the President or from other people because you can say, look, it's expensive and costly in political terms to get me confirmed. That gives me a little more leeway. Todd Blanche isn't in that bucket yet, although we know he's in the running for the Attorney General position in competition with Jeanine Pirro of the U.S. attorney's Office in D.C. harmony Dillon of the Civil Rights Division. Potentially. I think other people have been mentioned, like Mike Lee, Senator Mike Lee, as a possibility. Molly, talk to us about the dynamics around that. How does that, might that enter into the equation here? Is this an effort of Blanche saying, I'm going to unleash the hound because this is a tool. I have to show my value to the President. And then maybe he doesn't have to stick by that philosophy the same degree when he's Attorney General in the same way. Maybe Pam Bonney didn't quite. At least not in this particular case. Or are there other dynamics in play here around this AG competition?

Molly Roberts (25:55)

Yeah, it's a good question. He says he's not auditioning for the role. I think he has until October, which is a really long time. So part of me is thinking it's kind of. I feel like he's front loading a lot of stuff right now. And even if you do all this now, you know, if by October the President isn't as happy with you anymore, then I don't know how much it benefited you to do this now also, because I think it's easier for the President to keep him in there as long as possible. So it feels like the audition would be a little more important down the line. I am not really convinced that it's just audition mentality. And then once you get to be Attorney General, maybe you're gonna put the brakes on because it feels like that's a little bit too late. But, yeah, I mean, I guess I don't have a good answer for you. Maybe other people have a better answer. I kind of feel that Todd Blanche, he says I'm not auditioning, but he has long been the President's personal lawyer. And I think he's always going to have the mentality that he's the President's personal lawyer and that the President and his. His is his client. So while I think that on the one hand there's an auditioning element and he realizes there's pressure here, on the other hand, I think that's just kind of how he operates. And I also think that once you've done this, why would you then put the brakes on? Why would you then put the brakes on when you're confirmed, you've already lost any sense of independence or credibility. It seems like it would be a lot of cognitive dissonance to then be convincing yourself that you're upholding the independence of the Justice Department down the line once you're confirmed. So I don't know, maybe other people disagree with me and think this is just race for attorney General and then he'd operate in a different way. It seems to me now that this is how the Justice Department is going to have to operate under President Trump and that what happened with Pam Bondi has sent the message that you will be removed if you don't operate that way.

Tyler McBrien (27:49)

Yeah, I guess I'd have the same question on that premise, Scott, of if this was an extended job interview, he may be catching the attention of the CEO by doing these bold things, but everyone else is he not also then just giving a lot of fodder for the confirmation hearing for the opposition to just grill him.

Scott R. Anderson (28:08)

That's exactly right. But from my mind, that's why maybe we see these things front loaded now as opposed to later in the race. As I recall though, somebody correct me if I'm wrong on this. They basically he's got to like the end of October on the 210 days he's allowed to have. Then if he gets the nomination, then he can stay in the attorney general roll. I forget exactly how long before, a good deal longer while pending confirmation. And so he's got to kind of like earn that nomination at a certain point. The vote doesn't have to happen right after October 29th. He just has to get the confirmation. But I think you're right, that does sort of put the pressure on the nomination process because I do think some of these things will be controversial with certain members of Senate. We've seen Thom Tillis, who is going to be in the Senate through January, maybe on the Judiciary Committee. I have to go check on that. I think he actually might be. I will check that. I'm talking right here. Oh, yes, no, he is. He is on the Judiciary Committee. So at least one person who's going to have a role in this process confirming the attorney General if it happens before January next year, who has already picked a fight over this and held up nominations over politically motivated investigation, the Federal Reserve. So, you know, I don't think this is outside the realm of possibility. But, but if you front load these things earlier, you make your stronger case. Maybe you hope that that passes a little bit. And notably, like if they wait past October or past November, I should say A they may be dealing with a less favorable Senate. Obviously, I don't think it's far from clear Democrats are going to take control of the Senate, but it's a possibility. Even if you don't, you'll both be losing some senators who are a little more independent because they're retiring. But you may have narrower margins than you had in this particular Senate. So you don't know exactly what the odds after that are. And I would say generally, this has been my general philosophy of this. I think Trump's power is waning from its peak, which was shortly after he came office. He came to office with this little bit of sense of vulnerability after the last election, having won against perceived odds, and it's been on the decline since then. I don't think that's going to change as he enters the lame duck period of his, of his presidency. So, you know, part of me does think, if you're going to cater to this guy, if you're thinking of strategically do it now, front load it, lock in the nomination, then if you feel like you need to set brakes at some point, particularly if you're worried about getting confirmed, you're serious about that, then you can do that later. And once you get the confirmation, the costs of the Trump administration switching that are high. Doesn't mean he won't do it, doesn't mean he won't threaten it. We know that happened with, like, Justice Kavanaugh, among others. Right. But, but it strikes me there's a, if you were playing this as a strategic actor, you can see that sort of logic behind it. But, you know, I think Molly's point about how Todd thinks of his relationship to the president also is different. I mean, he is a Justice Department alum, but he's been, you know, his most recent formative years have all been in private practice where serving a client has served him very well and elevated him. I'm not sure why he would change that philosophy necessarily. So I want to go to the vindictive prosecution element of this before we move on from this topic. Roger, why don't we start with you on that? Although, Molly, I know you've written a lot about this topic, too. Talk to us about the vindictive prosecution case. Like, it seems like about as strong a case as you can have it, really high bar. Right. It's not easy to show vintage prosecution, but you've got every possible public statement about James Comey you could ask for put forward by the president, media reporting around it. You have lots of Media reporting about the decision making process that fed into this, this particular case, you see, being tied to the departure of Pam Bondi. And it's just fundamentally, I mean, I have to think to some extent the baselessness, the frivolousness of the case has to enter into the equation, maybe not formally for vindictive prosecution, but there has to be at least a informal sense of it that a judge looking at this is going to say, God, this is what you choose to bring. How could this not be vindictive? There's no merit here. So how do you see this playing out, Roger?

Roger Parloff (31:58)

Yeah, well, I thought the vindictive prosecution motion they filed in the case in Eastern District, Virginia earlier was the strongest I've ever seen. And I was actually, part of me was disappointed when it was dismissed on this other ground so that we couldn't ever see this one play out. Because there really aren't many selective or vindictive prosecutions that have ever succeeded other than in very different context, like, you know, somebody being charged with a greater crime after having lost an appeal. You know, very different things. But like you said, there was just this years of, of attacks. And then the ultimate thing was in September, that Twitter post, which September 20 was it, but something like beginning Pam, you know, and we can't, the gist of it was we can't take any more delay. They're making fun of us. Lindsay is a great lawyer and she likes you, you know, and mentioning Comey and Schiff and I think James, so that's a smoking gun. And in fact, we also know that it was probably originally sent privately and it was a dm. It was meant to be a DM and it was mistakenly published publicly. And then he removes it and then 11 minutes later he puts it back up or six minutes, I don't know what it was, but when he realizes it's too late. And I think he puts Halleck Lindsay's last name or some minor change like that, so the public now understands what he's saying. So that's the smoking gun. And here you have a charge that is even more, even weaker. And like you said, the context with Pam Bondi leaving, why did it take 9, 10, you know, Kash Patel gets up there and Blanche get up there and say, yeah, we've been investigating this for 9, 10, 11 months. That's the explanation for why this didn't go earlier. You know, it's just lying to the public. So this will be as strong as it's ever been. There are two different prongs the legal formulas for vindictive and selective are slightly different. And with the selective, you do need to show comparator cases. So, you know, where are you going to come up with a case that is anything like, you know, the seashell case that was pursued? That's going to be a challenge, but I think the vindictive prong of it will be even more decisive.

Scott R. Anderson (34:48)

Well, we are going to no doubt have reason to come back to this topic in the weeks to come. But let us move on to our second topic now, one that both entails the home front and our latest conflict overseas. I think it's still the most recent conflict overseas. That's the war in Iran. That war turned 60 days old this past week on technically it was 62 days old on Friday. And that day is particularly significant because that is the day on which the War powers resolution says, Mr. President, if you have not secured congressional authorization, particularly use of force, you are supposed to terminate the use of the armed forces in, you know, the incident that led to the obligation to get that authorization usually involved in hostilities or circumstances where imminent involvement, hostilities is suggested were implied. The Trump administration hasn't ended military operations in Iran, but notably it has reframed them. It has said it has ended Operation Epic Fury. We saw both Secretary of State Rubio, Secretary of Defense Hegseth say this quite expressly repeatedly in press statements over the last 48 or 72 hours. The president didn't say quite that in the letter he provided to Congress on Friday, but he did say the hostilities that commenced on February 28, that's the day Operation Epic Fury started, have terminated using that language from the War Powers Resolution saying essentially we've met this obligation under 60 days. And they say we're doing something totally different now, unrelated. We are still embargoing Iranian oil exports. And they started that halfway through Operation Epic Fury, and that remains an ongoing effort. And then on May 4, we saw them announce this new Project Freedom, a pretty significant maritime endeavor involving I think the count I saw was over 100 US vessels and 15,000 US sailors to try and improve security around the Strait of Hormuz to allow innocent vessels to transit that over the first 24 hours or 48 hours it operated. Excuse me. Evidently, there were at least more than 10 incidents in which Iranian forces opened fire on US vessels, usually small arms from kind of like speedboats they use around to harass traffic, in a few cases, bases from smaller scale cruise missiles and other armaments from the coastline. We also know there were a number of attacks that successfully landed on commercial vessels and that the Iranians actually season them of commercial vessels that were tempted to transit the strait under this sort of protective dome, as Secretary Hegseth described it. Despite all this, as of yesterday, the Joint Chiefs chairman of the Joint Chiefs of Staff Stan Kane said this really isn't a level of hostilities that rises to major combat operations. This is kind of just harassment by the Iranian forces, really consciously trying to downplay it at a press briefing. Nonetheless, this morning President Trump announced we're suspending this at the request of the Pakistani diplomats who have been facilitating Iran US Conversations primarily implicitly, I can't remember he said this expressly or not, but implicitly out of concerns that it was going to interrupt the ongoing cease fire, which, other than in the Strait of Hormuz, is still prevailing and has prevailed according to the administration since April 7th. So all this leads to this conclusion saying what does the 60 day cutoff matter, if at all, and what does it, what does it mean for this war moving forward in the form it takes and the arguments the President has about what he can do it? Tyler, I want to come to you first on this sort of question. I mean, from an observer perspective, somebody who I think follows the news around this as closely as more closer than most Americans, talks about how you see the administration framing this phase of its operations. Is it persuasive, this idea that it it's kind of checked the legal boxes and it's shifted enough that it no longer is running afoul of Congress and these statutory restrictions. Certainly Congress, some people objected, but it also has failed to enact at this point, I think, eight different resolutions between the House and the Senate opposed to military efforts in Iran. So what do you think the political and the optics around this are before we get into the legal technicalities?

Tyler McBrien (38:40)

Yeah, I find myself, you know, trying to parse this distinction for a lot of the administration's actions, whether it's a novel, creative interpretation of the law or if it's a blatant violation of it. And I also find myself grasping for a silver lining here, which the only one I can think of is that they are at least gesturing toward making an argument within the framework of the War Powers Resolution. But beyond that, you know, any way I turn it as a, an informed lay observer, in many ways it does not look good for a meaningful War Powers Resolution. I also am confused at the framing of even in their own logic of let's assume that the ceasefire or a ceasefire does pause the clock, what is happening doesn't look any more like a ceasefire anyway. So it's like this loss of meaning for both the War Powers Resolution and terms of art, like ceasefire or war, et cetera. And I will say this is not a phenomenon that is wholly new and originating in the second Trump administration, but it does seem to be an accelerated deterioration of this statute. I've seen people asking are there any real consequences to violating the War Powers Resolution? On the one hand, as you mentioned, maybe it did have some sort of effect on Trump announcing the end around the 60 day mark or a cessation of hostilities. But the war is also not looking great for the Trump administration. He gestured at, like you said, an appeal to the Pakistani diplomats. So I actually am curious to turn the question back around on you, Scott, of your read on wither War Powers Resolution. Can it survive this latest affront?

Scott R. Anderson (40:28)

Yeah, it's totally a fair question. I have a piece, as you and I know better than anyone at this point, that I've been struggling to get across the finish line the last few days. Hopefully we'll be up on lawfare, probably hopefully by the time people listen to this, that kind of wrestles with this question saying what does this mean for both the War Powers Resolution and the Iran conflict? I think where I come down on this is that I am like a vague War Powers Resolution optimist. I think it's actually hard to argue that most administrations have in complex plot that it hasn't substantially impacted how they pursue different sorts of combat operations. And I think this fits with that broader trend. I call it conspicuous compliance is a phrase that I've used in a couple prior pieces. I think I'm going to try and turn into fetch at this point. Let's see if I can lay claim over to a description about this, because even prior administrations that rejected this aspect of the war powers as unconstitutional, the Reagan administration, the George H.W. bush administration, both nodded in this direction. George W. Bush administration maybe did too, a little bit obliquely in its early phases. They still feel the need after 60 days to adapt their operation to make and advance one of these statutory arguments. Now they're able to rely on pretty weak statutory arguments because it seems very unlikely that courts are going to actually review these arguments. Right. Although I want to get back to that in a second. I'm not sure that's 100% right actually, or 100% how the executive branch ultimately views it. I think it's mostly right. But there's like maybe a caveat or two I threw in there. But they still have to adapt these statutory interpretations. And that has created this library of statutory interpretations that each presidential administration can look to and build on of these prior bipartisan precedents that they build off. And the Trump administration is very much doing this in saying the clock has ended and that we started a new clock with a different type of operation. That is what's known as the intermittent hostilities argument we've seen administrations make since at least the 1980s, where they basically say, no, we're engaged in hostilities at this one instance and respond to this one case, but then we stop and we don't expect a new one to come unless there's other triggering circumstances. So that's how the Biden administration, for example, was able to pursue airstrikes against Iran backed militias in Iraq and Syria over several years under the president's Article 2 authority. He eventually later shifted to a statutory argument, but under the president's Article 2 authority because each time he'd file a new report saying It's a new 60 day clock, I'm responding to this one provocation by these groups and then it goes down. And there is some logic to that, although I think it's often pushed way too far in these sorts of cases. Another element of logic, particularly around Project Freedom we see them tying back to is this idea the United States has invoked in prior sort of maritime operations, particularly during the tanker wars in the 1980s and during the Counter Houthi operation the Biden administration pursued just a few years ago, where they basically said, look, if our vessels are acting consistent with international law and simply transiting the way that international law allows them to do and then are attacked and we respond with self defense, we're not introducing those forces into hostilities. They're just doing what we're allowed to do, international law, we should be allowed that scope. And then they're coming under attack. And the trigger for the 60 day clock is being introducing US armed forces into hostilities or a situation where hostilities are perceived to be imminent. I'm paraphrasing, that's not quite the language. Now I think that's really different because yes, you're right, you think international law says you should be doing this, but the Iranians clearly are threatening hostilities if you transit the strait. Right. Like international ODD doesn't get around the fact that it is clearly a situation where imminent hostilities are implied. The Iranians are telling you they're going to do it. So I'm not sure that really passes muster, particularly in this case, although in other cases that may be a little more borderline, maybe you see an argument nonetheless, you have those sorts of precedents there. But the one thing we haven't seen administration do is the one thing that we know the War Powers Resolution was most squarely addressed at is to do another Vietnam Is to leave US armed forces in ongoing combat situations past 60 days, particularly ground troops, where you can't be withdrawn. That matters a lot less over the last 15 or 20 years because American air power is what the Americans focus on. So maybe that means war power resolution just matters less. But the fundamental line that is hardest for the executive branch to interpret around that Congress drew, which is the no ground troops line, is still holding. I actually think that's kind of remarkable in this particular case, particularly because every not every administration, but a number of administrations have been willing to push back constitutionally, verbally against the resolution, but they haven't really been willing to buck it. And they've mostly wrapped up their major ground operations, particularly within 60 days, to try and meet the target and avoid those legal issues. So long story short, I'm not sure it means that the War Prize Resolution is a dead letter, but it definitely doesn't mean it's the hard line that people might have wanted it to be, and that many still want it to be.

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Scott R. Anderson (51:00)

Delivery available for select devices purchased@boostmobile.com Molly Roger, what about you? I'm curious about your thoughts about this. I mean, is there any persuasiveness to the idea that you've got this sort of legal pressure coming in and particularly how does it intersect with the other dynamics around the conflict? We're at a stage now where the Trump administration has been dealing with this war that's proven very unpopular. We're facing midterm elections where members of Congress are hesitant to really take responsibility for this conflict. We've had Senator John Thune push back on efforts by Senator Lisa Murkowski to introduced a resolution authorizing this conflict while also putting some limits on it. She's like kind of middle of the road that way. In part, at least that's what the reporting is inferring because a lot of members of the Republican caucus in the Senate don't want to own this war in the lead up to the election, and people in the House kind of feel the same. So how does this intersect, this kind of deadline intersect with this broader set of dynamics? Are we seeing pushback against the administration? And do the legal dynamics matter? Is it strictly political or do they interact with.

Molly Roberts (52:03)

Yeah, I mean, I think you said a lot of it, which is that the pressure is limited by the reality that the Republicans don't want to own this. So the moment you actually put something on the floor and ask them to vote to do the kind of authorization that Murkowski wants to do or not, they have to decide am I going to vote for it and sort of own this really unpopular conflict, or am I going to vote against it and put myself against the president, which is a huge political liability, too. So I think that they're reluctant to assert themselves and Congress isn't great at asserting itself generally these days. So I think that that at least limits the pressure somewhat. And then I guess the other kind of big political question is the extent to which the Trump administration, President Trump, wants to be done with this war, too, is on the one hand, you have them finding all these reasons to continue. Well, had them finding all these reasons to try to continue the conflict, even when maybe it wasn't legal to do that. On the other hand, you have them wanting the war to be done. But it's hard because if you say, well, we're going to stand down and you pretend that we've claimed victory and you sort of, you know, unilaterally do stand down, why would Iran possibly stop mining the Strait of Hormuz without some ironclad reassurance that this is actually done and that the United States isn't just going to come back in six months? Trump literally said we'll just come back in six months. So those are my broad level thoughts on it. I think that everyone is in sort of a sticky position here as far

Roger Parloff (53:45)

as the War Powers act and the nitty gritty. I'm really not qualified to weigh in. Just as somebody that's older than other people on the panel and have seen some of these things come up over time. There's a slight difference than normal in that usually neither party really wants to weigh in. Usually they don't want to be caught with responsibility one way or the other. And they both like complaining that you didn't consult. But it's sort of like the dog that catches the car. They don't really want to catch it here. It's sufficiently unpopular that at least the Democrats could probably vote against it, the war, even if they got a chance. But I guess that's all I'd note.

Scott R. Anderson (54:41)

Yeah, I mean, that actually really is notable. I'm really glad you flagged that, Roger, because that's actually something that I am now going to steal and put into my piece. Because it's a good point. It is actually kind of dramatic. I mean, the votes we've seen around the resolutions on this are almost entirely party line. There is one senator from each side that's flipped. John Fetterman has voted against the resolutions. These are to terminate US Involvement in hostility or withdrawal I. Sorry. US Forces from involvement in hostilities. And then Senator Rand Paul has voted for all the resolutions on the House side, the first resolution had, I think, five Democrats voting against it. I believe that was down to just one this last time, which happened in mid April. So it is a very partisan split, and Democrats are willing to come out striking this war again. The reason you keep seeing these votes is because Democrats keep bringing the matter up and they're using expedited procedures provided for by the War Powers Resolution to force votes on these things. And even though they keep losing, they see it in their interest to keep having these votes, I think, because they really are trying to tag this as a political issue and make Republicans feel the political heat for it, because that's where their counter pressures comes from. So, Roger, I want to ask you another aspect of this, just because you're the other lawyer on the line, although Molly and Talia, you may have views on this, I'd welcome it. But we're getting wonky here. This is this question about could you see a lawsuit over this? Because it's something I've really been wrestling with the last few weeks. Right. The only people have routinely sued to try and enforce particularly this aspect of the War power resolution, like most aspects, are members of Congress. And it's pretty clear that members of Congress alone don't have standing to do this. According to the Supreme Court. There's a Rains v. Byrd, 1997 Supreme Court decision that says basically legislators can't do that. Maybe if you got a critical mass of legislators that could credibly say if you actually brought this to a vote like you're supposed to, we could dictate an alternate outcome, like we could vote down an authorization. So I think that would be at least a minimum, a majority of the House or Senate, even though even then there's some questions as to whether that would be sufficient. But, like, that's the minimum threshold. You could begin to make those arguments, but that's just not in the cards right now. Maybe we'll be after January, but it's not right now. But who else could pursue lawsuits like this? Like the one category in me that clearly could. Or at least you'd have a very strong case of service members, because we saw lawsuits about this by service members who were facing deployment during the Vietnam War. No. A dozen of them at least. There have been a handful of cases where this has happened subsequently. And generally service members either have been found to have standing or courts haven't been reluctant to say they don't have standing, and they usually dismiss it on some other justiciability grounds. But who else could have standing do this? One category that jumps out that we're seeing being more and more active in the space recently are the states. Over the past 20 years, particularly the states have become particularly those governed by the party contrary to whoever's in control of the executive branch have become so active in public interest litigation. And they've often succeeded in part because they have such a diverse range of interests that they can lay claim to standing where lots of other plaintiffs can't. They have so many different hooks they can come in. And I wonder if that, you know, if you could see a hook for estates coming in, the one that jumped out to me as a possibility. We had this Biden v. Nebraska case a few years ago where the state of Missouri was found to have standing to challenge President Biden's loan forgiveness program because they had a state run state law institution that earned money from administering those loans and so canceling them would have taken that money away. Similarly, in the United States, or in states like Virginia and California with tons of service members, you have lots of public universities that get tuition from service members and then they actually have state law obligations to repay them. The causation is a little more attenuated there, and that may break it, but it strikes me at least that maybe there's a colorable argument there saying, and I have to think there are other cases where state institutions and agencies are facing hardships because of these deployments which are affecting tens of thousands of their citizens. Do you think there might be a hook there? Is there a reason we haven't seen the sort of public interest litigation in the past? And maybe this dynamic where Democrats are willing to own their opposition to the war might drive a blue state like California or Virginia to finally take that step.

Roger Parloff (58:41)

Well, here again, I'm pretty far out beyond any expertise I might possess on anything, but I come to it very pessimistic, even the best. There's strong political question arguments about justiciability to begin with, but this just seems like the states don't have any role in armed conflicts abroad. The domestic program you talked about would be very different. That's just my gut that I'd be very pessimistic about a state intervening in this subject.

Scott R. Anderson (59:24)

Well, that seems to be the views of almost everyone I've asked about this, but I still have this legal theory that I'm putting out there and now trying to refine a little bit more as to see whether there might be a hook there or not. If nothing else, I think there might be a culable one that a state willing to take a swing and maybe make a political statement, even if they end up losing the suit, might be willing to do it. And we've seen certainly legislators do that in the past. Most legislators who file these lawsuits have done some knowing they're going to lose the last few cycles, but they do it anyway to get the point out there. Maybe you could see a state government getting on board with the same idea and maybe there are other arguments, other interests they have that might be more directly affected by this. But for the time being, we are going to have to leave the War Powers Resolution behind us as we have another set of weighty executive branch decisions, key national security policies to evaluate. And that is, of course, President Trump's in process plans to demolish that part they've gotten through and then rebuild the east wing of the White House into a glorious ballroom and by the way, take on a few other projects here around our nation's capital. In Washington, D.C. we have not just the aforementioned effort at the top, the of of taking over a municipal golf course. We also have the Trump administration taking over the Kennedy center, cutting down some valued willow trees, although it sounds like they actually may have been legitimate reasons for that. They come around potentially overhauling, even demolishing big portions of the Kennedy center kind of beloved public institution here in D.C. on top of that building a giant arch at the end of Memorial Bridge is another possibility that appears to be in the works all around. It is very clear President Trump is trying to put his stance on our nation's capital as part of presumably his focus on legacy. Not only has his name popped up everywhere, you can't drive down Constitution Avenue without seeing his face because he puts large multi story posters, usually with his very creepy, kind of like the villain in Ghostbusters 2, whatever that guy was in the painting, very serious kind of warlord sort of look on his face. That is for some reason his official presidential photo hanging over all, all of these. Not a smiling, happy man, but a grumpy, angry man threatening you. It's not the most delightful environment to enjoy the monuments, I will say at this particular moment, at least in my experience. But he's facing some legal headwinds at least on two of these fronts. The golf course front, ballroom front and also actually the Kennedy center front, a few of these other ones. So, Roger, let me turn you, because I know you listen to all these hearings a little bit, I think specifically about the golf course recently. Talk to us some of the challenges about that and how they interface with some of these other efforts to. To put a stamp on D.C. that we're hearing discussed.

Roger Parloff (61:58)

Yeah, this was the most recent event. This was this week. And this has to do with. Yeah, there's a East Potomac park which has had. It's national parkland and it does have now a golf course that's been there since 1920. And it now has actually three different. Well, it had three different courses. And it was distinctive in that it was sort of an everyman's golf course. It was reasonable fees. You could get reason if you wanted a little food beforehand. It didn't cost that much. And it was sort of desegregated in 1941, which is very early. You had to be sort of brave to use it if you were non white. But you could use it apparently after 1941. And it's beloved. It was a historic sort of thing. I mean, a famous golf course architect, as golf course architects go. So suddenly, maybe. I think in August we learned that Trump had plans for this area and he wanted to convert it into a Washington National Golf Course, which would be a championship level golf course. Now he has golf courses of his own which are championship level and they are incredibly expensive. The one in Scotland, I think, if you aren't a member and you want to use it, I think it's $2,000 for green fees. You know, there's one here that's more like $700. I mean, in the United States anyway. His plans sound like one of these. There's a palatial clubhouse. It's a little hard to see. It would change things. And the architect that he is talking to is one that did a couple of his courses, I think, in Northern Virginia. Now, the game that is played recurringly with all of these monument issues, the arch on the other side of Memorial Bridge, all of these issues, is to say, well, it's just inchoate. It's just in plans. And the reason they do that is the legal theory for blocking him is to use the apa, the Administrative Procedure Act. And you can't use that until there is final Agency act action. And so they're saying there's no final agency action here. And of course, the danger is what we saw happen with the East Wing, one day you wake up and it's gone. And until you, you know, until it's gone, there was no final agency action. And so this puts judges in a difficult spot. And this isn't actually, you know, this goes back 40 years. You know, Trump, Trump put Trump Tower where there was a Beloved Art Deco building called Bonwit Teller. And it had these, apparently, I never saw it, bas relief sculptures, I think, at the top. And so he was reassuring, don't worry, don't worry. We're going to preserve theirs. We're going to donate those to the Met Museum. And one day everyone woke up and the building was rock trouble. It was gone. And so this is his M.O. go with the fait accompli. And so everyone's worried. And so on March, there is a suit about this golf course. The East Potomac park area, which includes Haines Point, which is a beloved sort of place. There was News reporting on May 1 and May 2 by notice, and then in the Washington Post that things were going to like that on. I think on March 3 would be. The park would be closed and the tree removal would begin. And the Post had actually obtained a fundraising brochure which was really alarming. And it was sort of a. It included both East Potomac park and West Potomac park, which has the. The National Garden of American Heroes plan. So they marched into court. It was an emergency. You know, I think the filings were on a Sunday evening. And we don't know if the reporting was wrong or if plans changed. But the government said, no, no, it's just all we're doing that we aren't closing anything. And there were signs up saying there were signs that were photographed that said closure, but we don't know how that happened. And the National Park Service claimed they weren't their signs. And they said, no, it's just we're inventorying a sort of deferred maintenance, like dangerous dead trees that could fall on somebody. We're not making room for the courts yet. Anyway, she ended up. She didn't want to. She said she didn't want to issue a tro. She said, I'm not. I don't want to be Amy Poehler, referring to the star of Parks and Recreations. You know, I'm not going to micromanage this park, but if you're planning to do something more than cut down 10 trees, tell the other side and give them an opportunity to come to me. And it was clear, though, she doesn't want. She used language that was, in effect, I don't want to happen. What happened in East. And I left out the part about the soil dumping, which I can leave to Molly and some other stuff to clean up behind me.

Scott R. Anderson (68:14)

So, yeah, Molly, talk to us about the intersection with this and the Ballroom case. So we have the physical intersection. The Ballroom remnants were dumped in part on the golf course and apparently maybe having negative environmental effects. But talk about the intersect with it because that's the context we're hearing this national security argument where the Trump is now saying okay, let's move this ball. And for we talked about this a little bit. I can remember last week or two weeks ago here on the podcast. So bring that element into the story here a little bit.

Molly Roberts (68:41)

Yeah. Okay. So where to begin? I guess we can start with the debris. So the debris is just a bunch of soil that from the east wing demolition that they carted right on over to East Potomac and dumped on the white course. There are a few courses I've been golfing it East Potomac a little. There was this weekend there was this whole kind of situation where they thought they were going to shut down. And so they were all the staff were sort of there really late having kind of a farewell party to of the course. And then of course it ended up that it didn't close. But anyway they dumped it on the white course. So if you go there and you golf now there's just this giant pile of soil just towering and they apparently the administration kind of keeps bringing more over. Part of the suit was to force testing and to force the disclosure of the testing results of this soil which I believe we found out on Monday does have some dangerous metal contaminants. The question of whether there's asbestos in it weirdly is still unanswered. There wasn't an asbestos test on two samples and then the third sample, one of the baggies burst open so they weren't able to test it. So also could be asbestos. So you know we're talking about the danger of a dead tree falling on a golfer. I think we may want to mention the danger of the asbestos and impossible asbestos in the air as everybody is going and golfing on the way course. But anyway, golfers are quite miffed because if you hit your ball into the big debris pile, you can't go get it. That's just a lost stroke. But that is the connection between the debris in the ballroom specifically or practically. But then there's also kind of the more thematic connection of the asking forgiveness later instead of permission first, which is something that Judge Reyes mentioned in this hearing that she was was dragged to from abroad when in the middle of the night her time this emergency motion was filed to get to the national security element of the ballroom argument. That goes back to what happened last week or not this most recent weekend but the previous weekend at the White House correspondents dinner with the Attempted shooting of the president or his cabinet members also present at the event, after which both President Trump himself and many administration allies said, this is exactly why we need the White House ballroom. It's a safe and secure place for the president. And his Justice Department ended up submitting a filing in the lawsuit related to the construction of the ballroom, saying that the district court judge, Judge Richard Leon, should issue an indicative ruling that he would dissolve his injunction because this shooting showed how necessary the ballroom was for the president's safety and security. This was a crazy filing in that it read more like a truth social post than any brief thing that.

Scott R. Anderson (71:54)

More worth filing than reading than anything I've read recently because it is just so astoundingly. Astoundingly reads like a five page. I forget how long exactly. It was like Trump tweet. It's really unreal. Yeah, I mean, you know, it's astounding.

Molly Roberts (72:07)

Rogers developed a metric for reading Judge Leon's opinions, which is the exclamation point density measurement. Judge Leon is known for putting exclamation points in his rulings, and there were plenty of exclamation exclamation points in his rulings about the construction of the ballroom, because already the administration had been trying to say, well, there's a bunker underneath the ballroom. We've been allowed to continue work as necessary for national security related to that bunker. But actually, the ballroom above ground and below ground construction are an integrated hole. And you should let me not. Not hole. H O L E W H O L e. You should let me. You should let the administration continue doing the construction because of this, even though your injunction says that they're not allowed to continue doing the construction. And Judge Leon issued an opinion saying, that's a brazen interpretation indeed, exclamation point. So everyone was making hay over that. And then the administration comes in and files this briefing that references Barack Hussein Obama Trump derangement syndrome in all caps, standing in all caps, instead of just standing in lower case like a normal briefing would. And other kind of language borrowed from Trump tweets, such as a woman walking her dog referring to the woman the plaintiff had relied on to get standing, who's a history professor who walks around the White House and ellipse for her enjoyment and for her work. So really a wild briefing, but kind of one that suggested that the President had been personally involved with this effort, which is essentially to try to argue that regardless of what the law is, the administration should be able to continue building this ballroom because the ballroom itself is essential. To his security and to national security. So there hasn't been a national security argument made about the golf course yet, and it seems odd to think that there could be. On the other hand, they make national security arguments about a lot of things that it's odd to make it about. So at the moment, the connection between the two is continuing with the project even when a judge has told you not to. Possibly Judge Reyes is trying to make sure that doesn't happen. That's why she said, you have to tell me before you go ahead and get rid of more than 10 trees and physically dumping the debris, possibly dangerous debris, on the course.

Scott R. Anderson (74:32)

It's a really crazy set of stories, and we hear all this here. I will say on the ballroom front, I don't think it's actually totally unreasonable to argue that the president could use a larger entertaining space that is within a security perimeter. Now, that doesn't mean you should be able to ignore the law that regulates how you build these things. Right. That's the weird part of this, is that you're saying, well, this is an emergency situation. By your own account, the president didn't have a space he could use previously. That's why they're building the East Wing. So he's not losing anything by doing this. You did personally tear it down. No one thinks that this would have been reconstructed by this point. And there are other secure venues the administration can use. Maybe they're not as convenient as the East Wing. Again, maybe there's good reason to have an enhanced ballroom space in the East Wing, But I don't think that really bears in on this argument. And there's national security nexus there. But to bring it up here, this is a revelatory moment or an urgency that's just not, not really, I think how construction argues are in this, particularly when you're talking about, like, highly discretionary events that could be held all over the place. And the correspondence dinner itself, as we talked about the other week, this isn't usually held at the White House. This is usually held at a private space. So it's not unusual for the circumstances here weren't unusual in that regard. Tyler, I want to come to you with one last thought on this that jumps out at me. I think part of the issue of these things and like, part of the pushback the administration getting is both the scale and the incredibly idiosyncratic ways Trump is using this newfound authority. Right. Like, it turns out the president has a lot of control over micromanaging these things. And that's mostly because no one ever thought any president would ever give a shit about them. Right. Like, it's just hard to imagine that a president would be painting the color of the reflecting pool and doing all these things. But, you know, I guess for a president who is a historical real estate, luxury real estate manager, that's where he made his money. That just jumps out at him. And he's a guy who likes to point around and do things. And in some ways, that might not be bad if you had a president who was willing to spend the money on beautification and sustaining plenty of national parks could use better hiking trails and clear markings and repairs and new picnic facilities. That would be great if that's what the President's focused on. But so much of it is so idiosyncratic, and that not only involves putting his name personally on these things, but weird things that were popping up all over the city that are so contrary to how I think a lot of Washingtonians, a lot of Americans, like, think about the aesthetic of these things. And it's crazy to think it matters, but I really think it actually made me weigh in here. The clearest example to me is the White House, the one area where no one really is arguing the President can stop, except for maybe destroying the East Wing. But also in the White House, we've seen the President pave over the Rose Garden, which is. There's an argument there that we need paved event space. But the Rose Garden was kind of a historical artifact that people liked. We just saw him install this Presidential Walk of Fame that is the most ludicrous, over the top gilded thing I've ever seen in my life. And has a giant, like, script letter of the top Presidential Walk of Fame. Very weird to see on kind of like the. I think it's the West Wing colonnade. It kind of connects the West Wing to the main residence. And now they've installed evidently, black granite on that walkway specifically to accent and complement the gilded accoutrement that's been added as part of this walkway. And if you look at the West Wing right now, and particularly the Oval Office, like, it looks crazy. Like, it looks like a Habsburg palace of weird guilt that's just been randomly glued to the wall. Like, there's just random chunks of metal or things painted like metal. I doubt they're actually metal just, like, glued all over the place. Am I crazy to think, like, this actually matters to some extent? Like, if he were just trying to put up new wallpaper or restore things or adjust things, where it's just like a 10% aesthetic adjustment. I don't, I kind of don't think a lot of people would raise quite the stink here. But it's because the President is doing things that are so dramatic and such a departure from like the median, perhaps very unaesthetic and unappealing, but nonetheless like lowest common denominator views of what Washington aesthetics should be, lies that I think it gets, frankly, federal judges who have gotten used to the way things are and tend to be like long term D.C. government locals, I think maybe a little more agitated. Am I crazy about that? I just feel like from the 60 year olds I know who are Washingtonians, they care about this. And that's most federal judges at this point that are going to have to report these things.

Tyler McBrien (78:54)

Yeah, I mean, it really is the perfect Trumpian issue. It's the quintessential. It combines so many of his pastimes, obsessions, obviously, real estate, infrastructure, development, putting his own name on things, this weird pastiche of like a Cheesecake Factory rococo with like neoclassical, but doing none of them well. And everything is lesser than the sum of its parts. These inherent contradictions of espousing a traditional aesthetic while just running roughshod over any sense of tradition or preservation. But I take your question. It does have this simultaneous high stakes, low stakes quality to it. I think, in short, it matters because it matters to Trump. And Trump has a way of just manifesting or through sheer force of will, making things that he thinks are important, important. But there also are, you know, real stakes here. I mean, the, the funding of the, of the ballroom project is, has been fairly opaque. There have been a lot of letters from senators, Democratic senators, to get more information on who these donors are and what the terms of the contracts were. There's been some changeover in the architects themselves and the construction companies. So there's also this mix of possibilities of undue influence or corruption allegations. And then of course, it combines, I think, not to be an undercounted pastime of Trump's, which is holding grudges and having a long memory. I mean, his fixation goes back to at least the Obama administration, when he was famously snubbed by David Axelrod for his suggestion to fund a new space for our new White House ballroom after, I think there was a state dinner and which some people, they had to set up tents or something and he thought it was. And, you know, just this obsession with artifice and the aesthetics over everything. It's just very Trumpian to me. So, you know, for anyone who's thinking this will go away anytime soon. There's just zero chance. I think it's just there's no mystery why he's so fixated on this and why it's been elevated. I guess I'll end with just this scene I keep coming back to which he was in the middle, I think of a meeting with Exxon and Chevron executive, a very important meeting. And in the middle, just unprompted, he drifts over to the window and gazes at the ballroom construction site and addresses. You know, it's like this is an opportune time, but I just have to look at it. It's just, I think this is the thing that keeps him up at night. Not Iran, not the Caribbean, not immigration, the ballroom.

Scott R. Anderson (81:27)

Well, we will have to find out because we have stories will be with us, particularly those of us who live in our nation's capital for a good while to come. But we are out of time for this week. This would not be your national security if we did not leave you with some object lessons to ponder over in the week to come. Roger, what did you bring for us this week?

Roger Parloff (81:42)

I've been reading a book that I actually began before the Iran war or the Iran military operation. It's an old book from the early 2000s called Reading Lolita in Iran by Azar Nafizi. And it's a really brilliant book. It's not an easy book, but she was teaching English at universities there when the revolution happened, or shortly after the revolution, and was there for about 18 years, I think, under the Islamic Republic, trying to teach Nabokov and Great Gatsby and Jane Austen and William James. It's a really fascinating book and really gives you a feel for, I guess, one of the most oppressive regimes that's ever existed. I recommend it, but like I say, it's not the easiest book, but. But I recommend it.

Scott R. Anderson (83:01)

Wonderful suggestion. Molly, what do you have for us this week?

Molly Roberts (83:04)

Okay.

Scott R. Anderson (83:05)

A physical object, as always, keeping the streak alive. We're in your house, so it's easy.

Molly Roberts (83:10)

It's easy. I have a globe of D.C. i was thinking about Trump's remaking of D.C. cool. So it has, you know, here's Eastern Market. Here's. Let's find the. All right, here's the White House. So we're going to have to get a new.

Scott R. Anderson (83:27)

I feel like this is throwing the fuel in the fire of the flat earthers who. They can look at this and be like, see?

Tyler McBrien (83:33)

Or do you see people who think it's the center of the universe or.

Scott R. Anderson (83:36)

Yes, exactly.

Molly Roberts (83:37)

The flat cityers have been. Their views have been debunked. I do not think that this. Yeah, right. Have been confirmed. I guess this is, I mean, this is crazy. I'm trying to think what converges in a bizarre place now. Okay, here we go. Here's East Potomac Park. I think all over here. Anyway, we'll have to get a new edition of. It was my thought we'll have to get the Arc at Trump and the ballroom is going to take up a huge part of this White House area over here. But anyway, good way to learn about this would be a good memorialization of our city as it was prior to this era.

Scott R. Anderson (84:13)

Wonderful. A wonderful, a wonderful artifact there. For my object lesson, I want to bring listeners attention to the fact that lawfair lost a longtime contributor and friend of the website this past weekend unexpectedly. That's Stuart Baker. Stuart was a former general counsel at the National Security Agency. He served at the Department of Homeland Security, served a bunch of government roles in various Republican administrations. He was, I think Ben has described him as one of Ben's kind of earliest mentors in national security law and policy. Helping Ben as a young journalist kind of figure out how certain things worked in this space. He was somebody who's very involved in the website early on. He's a partner at Steptoe. He ran the Steptoe cyberpod Law podcast for years and years up TO I think 2024 when he retired it, when he stepped back and retired a bit there. He's a wonderful, warm and interesting person. I don't think I've ever disagreed with anybody more profoundly than Stuart, including on the website. I remember one occasion where he published something on lawfare back when we had a number of people who just posted directly onto the website when it was more from its blog era. He posted something so profound that I saw as I was boarding a plane with no Wi fi access that I spent the flight writing a rebuttal and then landed, only to see that somebody else had already beaten me to it and written the back, exact same rebuttal. But Steve, it's also the example of the old tradition of somebody being able to disagree decipherously for someone but to really engage people who you may disagree with substantively, supportively, warm heartedly. My wife worked for Stuart for several years and every time I go to an event, the law firm they both worked at, he was incredibly warm. He sought me out, said hello, because he knew I knew Ben. He knew I worked for lawfare. He was somebody who we engaged with substantively even when we disagreed was always respectful, probing. And frankly, I never felt, as I think a lot of Lawfare contributors and Lawfare readers felt, that even where I disagree with him, my thinking grew sharper from having engaged with him on it, often in a pointed fashion. And he was a provocateur. I think a lot of the things he wrote and he said were intended to do that, to provoke thinking, sometimes in ways that were a little uncomfortable, but I think were ultimately productive. So it's a real loss, I think, for lawfare and for the Mass Security legal community writ large. We're in an era now where disagreement has lost. We've lost a lot of civility around disagreement that used to be part of this field, like so many fields. And Stuart was one of the last lions of that tradition. And it's sad to see him go particularly so unexpectedly. But if you are or aren't familiar with Stewart's writing, I encourage you to check it out on lawfare. And particularly over the last few days, we've put up a number of remembrances and memorials from folks at Lawfare, including from Ben, from Bobby Chesney, from a number of others talking about Stuart and what he meant to them. I encourage you all to check it out because he was a very special guy and he will most definitely be missed with that. Tyler, not to force you to like a lesson on a somber note, but let me hand it over to Bring Us Home. What did you bring us for an object lesson this week?

Tyler McBrien (87:12)

Well, I'm on a podcast recommending another podcast.

Scott R. Anderson (87:17)

It's a long tradition. Exactly.

Tyler McBrien (87:19)

We love to go on podcasts, talk about podcasts. This one is called Divine Intervention. I've only actually three episodes in of ten, I believe, and I can already confidently and wholeheartedly recommend it, and not only because a friend of mine produced it, but it's just an incredible story set. I won't give too much away, but it's a true story. In Boston In, I believe, 1971, sort of radical pacifist Catholics helped give refuge to an anti war activist and draft dodger and in this unlikely band, but don't take my word for it, it just also won a Peabody Award. So I don't know if I'm. I'm like, I didn't really find. I didn't dig deep, but it is that good. So I encourage everyone to listen to it.

Scott R. Anderson (88:05)

Wonderful, wonderful suggestions. 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 lawfourmedia.org for our show page, for links to past episodes, for our written work and the written work of other Lawfare contributors, and for more information on Lawfare's other podcast series. While you're at it, be sure to follow Lawfare on social media. Wherever you socialize your media, be sure to leave a rating or review wherever you might be listening listening. And sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast, among other special benefits. For more information, visit lawfaremedia.org support our audio engineer and producer this week was Noam Osband of Go Rodeo. Music, as always, was performed by Sophia Yan. We were once again edited by the wonderful Jen Patcha. On behalf of my guests Tyler, Molly and Roger, I am Scott R. Andersen. We will talk to you next week. Until then, goodbye.

Molly Roberts (89:00)

Big news Boost Mobile is now sending experts nationwide to deliver and set up customers new phones at home or work.

Scott R. Anderson (89:05)

Wait, we're going on tour?

Molly Roberts (89:06)

Not a tour. We're delivering and setting up customers phones so it's easier to upgrade.

Scott R. Anderson (89:11)

Let's get in the tour bus and hit the road.

Molly Roberts (89:12)

No, not a tour bus. It's a regular car we use to deliver and set up customers phones at home or work.

Scott R. Anderson (89:17)

Are you a groupie on the this tour?

Molly Roberts (89:18)

We deliver and set up phones. It's not a tour.

Scott R. Anderson (89:21)

Oh you're definitely a groupie.

Molly Roberts (89:23)

Introducing store to door switch and get a new device with expert setup and delivery wherever you're at.

Scott R. Anderson (89:27)

Delivery available for select devices purchased@boostmobile.com.