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- [00:01]
Scott R. Anderson
The following podcast contains advertising to access.
- [00:05]
James Pierce
An ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com lawfair also check out Lawfare's other podcast offerings.
- [00:22]
Scott R. Anderson
Rational Security, Chatter, Lawfare, no Bull and the Aftermath.
- [00:32]
Molly Reynolds
Dear old work platform. It's not you, it's us. Actually, it is you. Endless onboarding, constant IT bottlenecks. We've had enough. We need a platform that just gets us. And to be honest, we've met someone new. They're called Monday.com and it was love at first onboarding. Their beautiful dashboards, their customizable workflows got us floating on a digital cloud nine. So no hard feelings, but we're moving on. Monday.com, the first work platform you'll love to use.
- [01:03]
Paige
Picture this. You're halfway through a DIY car fix, tools scattered everywhere, and boom, you realize you're missing a part. It's okay because, you know, whatever it is, it's on ebay. They've got everything. Brakes, headlights, cold air intakes. Whatever you need. And it's guaranteed to fit. Which means no more crossing your fingers and hoping you've ordered the right thing. All the parts you need at prices you'll love. Guaranteed to fit every time. Ebay. Things people love.
- [01:37]
Scott R. Anderson
Molly Iris, Are you a pet person? Do you have pets?
- [01:40]
Molly Iris
No, not a pet person. I grew up in a house with five human children, and my mother's position was that that was too many human children for any animals.
- [01:53]
Scott R. Anderson
I'm with your mother on this one. I think that's fair. I think that's fair. How did your mother feel about, like the fake pets? Like the mostly ornamental pets? Like a goldfish.
- [02:03]
Molly Iris
Yeah. So we were just like a pretty. We are pretty firm. No animal households. I have a memory of when I was in preschool having the class guinea pig come spend a weekend at our house a couple of times, but that is the extent. Extent of any animals whatsoever in our house.
- [02:24]
Scott R. Anderson
As a kid, we adopted a mouse from my little brother when I was growing up, as I recall from a summer camp where you learn to take care of animals and they all got to take a mouse home at the end of the. Which they did not tell parents in advance. It was a real surprise to my parents.
- [02:37]
Molly Iris
That's a nightmare.
- [02:39]
Scott R. Anderson
Yeah. Which we then kept. And then the mouse lived a shocking long time for a mouse. Like I think a year or two, got cancer and then we paid for mouse chemotherapy because you're like, feel Bad because of things in your life and your little kid's attached to it. But at the same time, I was like this. Even at the time, I think I was like 12. I was like, this is maybe over the top. James, you have a small. I didn't realize you're like a Dr. Doolittle type. Like, you have a small community of furry creatures living at your place. Like an astounding number. How do you keep up with. Was it four cats and two dogs? Is that right?
- [03:10]
James Pierce
Yeah. Yeah, that's right. So four cats that have come into our household in kind of two pairs of two. The first two were Covid cats, two sisters, and then really at the behest of my younger daughter, who really likes bringing animals into our house, but doesn't shockingly like taking care of them quite as much. She likes playing with them, but, you know, feeding them, walking them, tending to them. Less popular. So four cats and two dogs. So it is, as you said, quite a menagerie in our.
- [03:40]
Scott R. Anderson
How many kids? Because that is a three, just to mount up the nice, even, kind of like partridge in a pear tree count. And then you can just end with like a parrot.
- [03:47]
James Pierce
I can't keep track of that. Just, just.
- [03:55]
Scott R. Anderson
Hello everyone, and welcome back to Rational Security, the podcast where we invite you to join members of the lawfare team as we try to make sense of the week's biggest national security news stories. I am thrilled to be joined by two of my wonderful lawfare colleagues. First, our senior legal fellow, James Pierce. James, thank you for coming back on the podcast for your sophomore event, I think here on Rational Security. Thrilled to have you on.
- [04:17]
James Pierce
Yeah, my pleasure. Thanks for having me back.
- [04:19]
Scott R. Anderson
And of course, a perennial favorite, our congressional maven herself, Molly Reynolds. No, technically, we're not talking strictly about Congress in front of our topics this time, although I feel like it probably is going to come up once or twice.
- [04:31]
Molly Iris
You say that now.
- [04:33]
Scott R. Anderson
I know. It's hard to avoid really, when you're in the chat. It's just one of those things where the center of gravity just moves towards our article, one somehow over and over again. Well, I'm excited to have you both on. It is a weird time. We are grounding a arguably not really meaningful this point milestone in the Trump administration, but one that the media has made meaningful for many a year. The 100 day mark for the new Trump 2.0 administration. We're going to talk about that. We're going to talk about what it means policy wise, what it means in terms of their legal strategy and for a few other topics this week. So Topic one Rounding the Feels like it's been a century Mark As President Trump comes to the end of his second first 100 days in office, he and his supporters are laying claim to FDR's mantle as the president to accomplish the most in such a short period of time. But how much success has Trump really had in enacting his broader policy agenda? How should we be seeing Trump's administration as it rounds this milestone? Topic 2 the art of the appeal More than three months into his second term in the White House, President Trump has clearly embraced a new legal strategy. New ish legal strategy, antagonistic towards the courts, aggressive in its claims of presidential power, and more than willing to run to the Supreme Court for validation. But so far that validation has been slow to come, and there are signs that even some judges appointed by Trump are growing weary and wary of his tactics. How successful is Trump's legal strategy proving? Could an alternative be more effective? And topic 3 doging a bullet A new report from the minority staff of the Permanent Subcommittee on Investigations claims that Elon Musk's involvement in the Trump administration and his role in dismantling federal agencies could save his various companies billions in regulatory costs and other potential liabilities. Is this a clear conflict of interest, or does this report reflect other factors in play? First Topic I want to come to Molly because we are at this 100 day mark. It is a completely manufactured mark that we take seriously nonetheless, in each first new president. I think it's traditional. Correct me if I'm wrong. I think it's traditionally seen as like this is the end of the honeymoon period. Most presidents are pretty popular through at least their first 100 days. And then you begin to see reality set in, mood sour. People start beginning to think, at least in this present day, about midterm elections that are now less than two years away or really the day after Election Day, are less than two years away, but now meaningfully less than two years away. And all the other things that usually constrain presidents begin to become a little more visible in terms of how they weigh down a president. Donald Trump so far and his supporters have tried to remain buoyant, at least in their outward representations of the presidency. They've talked about fdr, invoked FDR as kind of the traditional milestone of the president, get the most done in the first hundred days. And they're not the first ones to do so. Joe Biden says the same things in his first 100 days four years ago, as I recall, as did many of his supporters. Maybe Donald Trump did four years before that. I honestly can't remember at this point. It's been a while. So what do we really see that Trump having accomplish in his first hundred days? And how does it line up against the sort of legacy that people talk about when they talk about the FDR legacy, if that even makes sense as something we should be evaluating presidents for.
- [07:39]
Molly Iris
Right. So you're right that like this notion of the first hundred days dates to FDR when FDR was sworn into office and then brought Congress into a hundred day kind of special session to try and pass a lot of major legislation to address the Great Depression. And so if we want to use that very historical framing of like 100 days of intense legislative action in response to presidential agenda items, that is not what we have seen in the first hundred days of the second Trump administration. Congress has in lots of ways been kind of notably supine over the last three months. I'm not a huge fan of just kind of cutting up the number of bills signed into law as a measure of what is accomplished by Congress, that among other things, allies, differences between what's in them. But if we look at sort of what has happened in the first hundred days, the president has signed five pieces of legislation into law. One of them, with sort of great fanfare at the very beginning, was the Lake and Riley act, which is an immigration proposal. One of them was the measure passed in mid March to keep the government open till the end of September. And then the other three were resolutions that overturned regulations that have been promulgated towards the end of the Biden administration. So this is not an especially remarkable congressional scorecard for the first hundred days. And when we think about, we add into that the things that Congress has not done over the first hundred days, it's pretty significant. So Congress has really, particularly congressional Republicans have really just let the executive branch intrude on their spending power in lots and lots and lots of different ways. We can sort of talk about that at length, but we've really seen very little from Congress in terms of trying to assert its institutional authority against a very aggressive executive branch in these first hundred days. And I'll say one last thing before I sort of, I'm curious what the two of you think. But Scott, you mentioned this piece about public opinion and kind of how we think about a honeymoon period for a new president. And it's absolutely true that for a long time we would expect a new president to come into office and to enjoy some sort of honeymoon period. And that's still true to some degree, but we now live in a world where voters of the other party that doesn't hold the White House are very, very unlikely to ever approve of the performance of a president of the opposite party. This is not a uniquely Trump phenomenon, though it has certainly characterized the last three months. You can see it under Biden, you can see it in the first Trump administration, you can see it in the Obama administration as well. And that Obama did kind of enjoy the last what we would think of a traditional honeymoon period at the beginning of his first term in 2009. But since then, we really haven't seen high levels of presidential approval from voters of the opposite party. So a president doesn't even really get that in the same way that he used to in decades past.
- [11:08]
Scott R. Anderson
I think one of the better critiques, or at least most important caveats of any sort of claim of the most ambitious or the most accomplished presidency in the first hundred days for Trump is this point you make about how little is being done on the legislative front and how much emphasis is being put on presidential action. We have seen Trump do a ton in terms of issuing pure executive orders. Huge, huge volume. Although not all of them clearly do things right. Some of them are more symbolic things. That's something that we were very accustomed to during the first Trump administration. I do think more of them do things now than they did during the first Trump administration. To some extent, they're more ambitious in what they're trying to accomplish with executive orders and other sort of presidential actions. And there's certainly a larger volume of them. But there raises this question saying how durable is what they're trying to do? And it may not be a uniform answer across different issue sets. Right. If your goal really is to shrink federal bureaucracy and regulatory capacity, it strikes me that actually demolishing institutions, taking apart practices, procedures, institutional memory, resources to some extent, although resources gets into that Impoundment act question. Right. At least on the financial side. But other resources, personnel, things like that for federal agencies, that is something they really have done and that might be durable, at least for a while, even after Trump leaves office, because it will take time and effort to rebuild and resources from Congress and willingness on the part of prospective federal employees who frankly have been treated pretty terribly. But other parts may be less so and maybe even that is less durable than we think. Like we're assuming it sounds like it could be durable. I'm not 100% sure like what the tail on that is. James, I'm curious your thoughts about this. I mean you were a Justice Department attorney for most of your career, a good chunk of your career, at least, I guess I don't know most of it. I won't slap that label on it. But this is something I no doubt you all think about in that sort of context. How do you think about the durability of presidential action, executive action versus legislative action, and how much we can line up executive orders next to legislation and begin to compare them? Or is it more an apples and oranges sort of situation?
- [13:22]
James Pierce
Yeah, I don't know if I'd say apples and oranges. I do think there are certainly examples of executive orders that themselves kind of gain the popularity and sort of plant a seed for Congress and Congress then acts on it. So one example that we've actually seen that's been a source of litigation and maybe we'll talk about it later, is the creation of usaid.
- [13:43]
Scott R. Anderson
Right.
- [13:43]
James Pierce
So USAID was created first through an executive order, existed for a while, I think it was under jfk, existed for a while. And then ultimately, you know, I think Congress was, you thought, hey, this pretty, pretty good body, pretty good institution, and then, and then kind of recreated it at some point later. And so that as a formal legal matter, of course, that's not an executive order itself then creating a durable institution, but certainly giving rise to an institution that Congress later kind of puts its imprimatur on in terms of the question of the durability of executive actions and policies. I mean, for the time that I spent in the Justice Department, it's certainly not unusual. And you see this both in the context of executive orders that we've seen, as I think both of you have said quite a lot of in this, the early days of this, the 100 days of this administration, but just executive branch policymaking, there's a lot of flip flopping, right? I mean, it's almost, I'll answer this largely through the Supreme Court lens that I have some familiarity with, which is, you know, when you've got a new administration coming in, the justices are and the Solicitor General representing the US in the court has changed position. The justice is well, often that don't like the change will kind of berate the advocate and say, you know, you flipped, you know, once again. But that's, that's kind of, that's politics, right? That that kind of changes precisely what we would expect. I do think, and maybe we want to pause and address this maybe when we get into our second topic, but it's hard to assess the durability of a lot of these executive orders, because so many of them are just so actively being litigated now. And so, you know, some, some may have some staying power. Some, as I mentioned, the USAID example, in theory, could trigger a response from Congress. Molly would be better positioned to kind of have a sense on that. So I just think it's, it's early to, to, to know at this point, but certainly we've seen a whole flurry of, of activity and, and I think it will be an interesting case study to see those that, that do have lasting power and, and those that. That don't.
- [15:42]
Molly Iris
Yeah, I think I'd add sort of two things. One, Scott, I think the point that you raised about what is being targeted by a lot of these executive actions is really consequential. So you're absolutely right that historically we have often thought of executive action as less durable than congressional action, simply because when a new president comes into office of the other party, that person, in some cases, if we're just talking about an executive order, could rescind the executive order and then we're back to where we were before, or even if we're talking about regulation, can go through the notice and comment process to redo the regulations in a different way without needing to overcome all of the legislative obstacles created by the US Congress. But one of the things about the executive actions that we're seeing in the beginning of the second Trump administration is that they are really targeted at dismantling the structures of the US Federal government and then importantly, sort of eroding presumptions of good faith across the institutions. So this notion that even if, maybe as soon as this summer or this fall, Congress, when it's time to go through the appropriations process again, says, no, actually, we do want you, executive branch to spend money on X, Y and Z thing that you've stopped spending money on. How do you force an executive branch that has demonstrated a willingness to not do what Congress has said in the past, how do you force them to comply in the future? That's a really hard problem for Congress, and I think it's a really important piece of this dynamic about executive actions. The other thing that I will say is that when we are looking at things that Republicans want to accomplish that President Trump can't do alone, things that do actually require legislation, it's there. The wheels haven't totally fallen off the wagon for congressional Republicans, but they are having some difficulties coming to agreement within the party on what they want their sort of signature legislative agenda to look like. You know, there are lots of questions about what a tax bill is going to look like. There are lots of questions about what entitlement cuts are going to look like, cuts to the social safety net. And do I think they will eventually reach some sort of agreement that you can get 218 votes for in the House and 51 votes for for in the Senate? Probably. How long does that take them? I don't know. What does it ultimately look like when it's done? I also don't know that. But I think the bottom line here is that having a really aggressive precedent can solve some of your problems. But ultimately, when you do need legislative action and you have a party that is divided internally, has a small majority and is choosing to use legislative tools that don't require the participation of the other party, you are, you still have political problems and challenges to overcome, regardless of how aggressive the president is out there being on any number of things in very consequential ways. I don't want to sort of dismiss that. But having, having Trump doesn't solve all of their legislative problems as well.
- [18:53]
Scott R. Anderson
So I think the most persuasive version of the like Trump as 100 day accomplisher narrative was something I think Trump himself actually said, where essentially he said less that we accomplished as much as FDR did, but framed it more as saying we have taken apart what FDR set up that has defined American politics and policy for the past nearly 100 years. I'm not sure he's actually wrong about that. I'm not sure he's right yet. I think it's probably too early to tell, but it strikes me that the things he has accomplished is undermining a lot of the capacity upon which what we think of as the modern administrative state and a lot of things that are like in the national security context, other contexts that we wouldn't lump in as part of administrative law for like a law professor sort of zone drawing exercise, but have similar characteristics. Right. The executive branch has always relied upon large staff able to evaluate issues, able to do the sort of research, generate the sort of specific strategies, assessments. That's why courts deferred to the executive branch on how to interpret and apply statutes for so long up until, you know, Luper Bright this last term to some extent and still do to some extent, but not, not to the same degree. So I mean, is it possible that maybe Trump's right, that he has issued in a fundamental change in these first hundred days that might prove hard to as significant, but a significant departure, a change in trajectory for how American government runs and it strikes me that if that's true, the way it's particularly true is if he's actually establishing and normalizing this sort of disruptive, destructive behavior in a way that future political leaders in at least his party will be willing to embrace. Because even if Democrats come back and rebuild in a few years and try and restore things back to these status quo antebellum, they have to account for the possibility that frankly the inevitability that they will lose an election at some point and then the subsequent Republican president, if it's of a Trumpian mode, will come in and destroy it all again or do what he can to destroy it. And there are ways you can insulate against that with enough political will in Congress in particular, but none of it's airtight. And it's not clear you're going to get that amount of political will or that's how you're going to want to spend your resources. So I'm not sure he's wrong that we haven't pivoted in kind of like I'll political scientists to make you happy. Molly, a kind of Steven Skronik defining epoch era. I don't know if political scientists still thinks grown up is credible or not, but I read about him. I read him in college, so I know the name.
- [21:28]
Molly Iris
I will take any invocation of a major work of American political science on this podcast, particularly when it comes from someone who's not me. That's great. No, I mean, I don't. You're not wrong. I think here again to sort of appeal to the historical nature of the hundred days. Historically, we've thought about this as a time period for big legislative achievement. That again, is not what we're seeing. That doesn't mean that what Trump has done over the first hundred days is incredibly consequential. And I think it also just reflects this sort of difference in the way the parties think about what it means to achieve things when you have power in Washington. And that we are absolutely in an era where when Democrats have power, they are interested in sort of expanding and growing the size and scope of the federal government, and that is not at all what sort of the modern Republican Party is about. And so if you sort of take the benchmark as what Republicans say that they want to do, which really is a smaller government sort of eliminating wokeness, I'm using my air quotes here in American society, then, yes, I think we would say that what we've seen so far is significant progress towards those goals. It's just not in Sort of the historical FDR coded way of what it means to have a productive first hundred days.
- [22:56]
Scott R. Anderson
There's one other part of this equation which was such a foundational part of Trump 1.0's legacy to this very day, in a way that's very relevant today, although maybe not quite to the success President Trump and others around him might have hoped, but just doesn't seem to be as much of an emphasis this time so far, which is the courts. Really, as far as I understand it, the Republican Senate is pretty far behind in terms of actually confirming judges. And that's because the Trump administration is pretty far behind on nominating judges. And this is for both the past two administrations at least. Really prior to that, even this was seen as kind of an arms race. Huge amounts of Senate floor time spent trying to get nominees forward for these judgeships to fill in spots that were being vacated by retiring judges because it defined the contours of the judiciary that bears on so much. And if we're being honest, I think we actually see a lot of the consequences of the fact that Joe Biden had four years to nominate judges in the current makeup and character of the federal judiciary. In a way, that's been an important bulwark against some of these extraordinary actions and legally questionable actions. The Trump administration has pursued that. If we had had a second Trump administration doing the same things four years ago, right after the first, you may not have seen as much judicial pushback, because I don't think the character of the judiciary would be a little different ideologically and otherwise. I think you'd still see a lot, but not to the same degree. Do you have a sense of why that is? Molly and James, I'm curious from you about how important that is, like how big a part of the bulwark that is. That's frankly a good transition point to our second topic. But, Molly, first tell us where we are on this.
- [24:37]
Molly Iris
Some of it's just a. A numbers game. So Trump, when he came into office this January, there were, I believe, 46 judicial vacancies that were available for him to fill. If you look, if you compare that to the start of his first term, there were more than 100. At the start of his first term, that was the result of a strategic set of choices by then Senate Majority Leader Mitch McConnell to leave open a lot of judgeships for the possibility that they would get a Republican president and then be able to fill them with friendly nominees. I think that the McConnell piece of the story is also consequential. So McConnell defined part of his career and his role as the Senate Republican leader in terms of how many conservative judges he could get on the federal courts. I'm not saying that's unimportant to John Thune, who's now the Republican leader, but it's not a sort of personality defining for Thune as It was for McConnell. And then the third thing I will say is that so that as I understand it, the Trump administration has not really sent over judicial nominations for the Senate to begin processing. The Senate has been quite busy processing other nominations. And there are some things that Democrats have been doing to try and kind of slow walk some of the nominees to the executive branch, even though they can't ultimately be filibustered because we've lowered the number of votes needed to invoke cloture on nominations to fill to a simple majority. But the Senate's been busy in the nominations context. It's just not been busy in the judicial nominations context. And I think it's a combination of the number of vacancies, sort of the relative importance in this moment to the Republicans of processing more judges, and this idea that they have also been doing other things and they're again winding up for a major piece of legislation in the budget context to move this summer. So it'll be interesting to see kind of how these pieces fit together.
- [26:34]
James Pierce
I'd add a couple thoughts. I think everything that Molly says makes a lot of sense to me. I also think it's relevant that related to Mitch McConnell's approach to judicial vacancies, of course, quite prominently, when Trump came into office, there was a Supreme Court vacancy. Right. Which had been following the death of Justice Scalia and the holding up of Merrick Garland. So I think that that was foremost to the new administration. And once you've got kind of all of the pomp and circumstance of the Supreme Court and getting a justice seated there, you've kind of got the apparatus in place probably around the White House of people who are thinking, all right, now, this is the opportunity you've got, as Molly said, an ally in McConnell. And so all of that is in place to kind of move judges along with the justice that we got, Justice Gorsuch, you know, into the judiciary. I just don't get the sense, and I'm speculating I'm out of my kind of area of expertise to the extent I have one, that it's just not at the, you know, a priority for the White House in the way that it was or for Trump and the Trump, the folks around him in the way that it was in 2016. And if anything, and in some ways, this may be a segue to our. To our next topic. Right. You know, you see a good amount of hostility from this administration towards judges generally. I mean, other than the Supreme Court, even, frankly, judges appointed by Trump himself in the first administration aren't, you know, many of them, as well as I'm sure we'll discuss, aren't, aren't ruling for him. And I think Trump himself, other than the Supreme Court, doesn't want to spend much of his time and energy, and nor do the staff that he really relies on, on filling up the vacancies in the lower federal courts. So, again, I don't have, you know, sort of people that are telling me this, but that's just kind of the atmospheric sense that I get into the. It does kind of line up with what we are actually seeing in practice.
- [28:28]
Scott R. Anderson
Well, let's go to that second topic. You'll spare me from having to make my own awkward segue, which I appreciate, so I'll just take yours and let's jump that to our second topic about this question about Trump's legal strategy. Right. So I have this sense that Trump's legal strategy is pretty exceptional and something we're seeing pursued across multiple fronts by this Department of Justice. It looks kind of like what we saw the Trump administration do in regards to litigation bearing directly on the White House and certain presidential equities during the first administration, I think. So you think about issues like the McGahn testimony, right, where you saw a pretty, or frankly, a lot of things around different privilege issues and executive privilege relating to the White House, particularly once you had a Democratic, Democratic House in the second half of the first term doing different types of oversight, seeking information. We saw really aggressive pushback, including some pretty broad conceptions of presidential authority, executive privilege, things like that. From the Trump 1.0, and certainly in the impeachment context, we saw some broad assertions of presidential authority as a defensive shield against allegations that, particularly in the Ukraine context, certain policy moves were seen as unlawful or outside the president's authority. But I feel like we have seen the strategy just kind of amplified at scale. There are very few matters that I'm monitoring and as you guys know and are involved in as well, like lawfare. We are monitoring over 200 different litigations right now, responding to Trump administration's actions. And across almost all of them, we're seeing a character of this litigation that is very confrontational, very aggressive in asserting broad presidential authority. Very quick to appeal even preliminary measures, certainly due to the Court of Appeals in many cases, the Supreme Court, not universally, but many cases, and is, I think, straining credulity on a number of fronts, both about confusion about factual assertions lawyers are making, the fact that lawyers who concede that they don't have full factual pictures or that they are sometimes frustrated with the information provided to them by policy clients are being reprimanded by the Justice Department in some cases is removed at least temporarily from their roles. It's just a really it looks really different to me as somebody who's who did a little federal litigation when they're in government, you know, at this point, almost 10 years ago, always through my DOJ colleagues. So I got to do the fun part and you guys did the heavy lift and has watched a lot of federal litigation and government litigation in the years since. Am wrong, James? Like, am I overstating how big a departure this is, or are we really seeing something that is at least a sort of different sort of conduct from the Justice Department, different approach? Maybe it's a conscious strategy, or maybe it is more of just the type of output we're getting from certain institutional characteristics. How do you make sense of this?
- [31:13]
James Pierce
So I generally don't think you're wrong. I mean, I guess I would say with one carve out or exception. I think you started your remarks on, during the first Trump administration, the relatively aggressive assertion of executive privilege in certain contexts around the impeachment. And the one thing that I will say is that I think the executive branch and the White House has pretty zealously tried to safeguard questions of privilege and to sort of safeguard the presidency as an institution. And it's been pretty consistent across administrations in trying to police its own or more than even just police, but sort of fairly aggressively assert its own power vis a vis Congress and the courts. That said, I do think what we have seen in this second Trump administration, both as a matter of kind of legal theory and its approach to doctrine and as a matter of how it has actually litigated matters in court, looks very, very different. And to me, having spent over a decade kind of as a litigator almost unrecognizable as the Justice Department. And in some respects, what it looks like is the way that Donald Trump as a litigant litigates has become kind of the animating ethos of how the federal government litigates. And I think as a theoretical matter, that's kind of what we're also hearing from the Justice Department itself. Right. It Used to be that kind of an understood norm, that the Attorney General operated with a degree of independence, clearly was nominated by the president and was there to carry out certain policy objectives. But at the same time, federal attorneys, DOJ attorneys, represented the United States, and they were there to be candid with courts, to exercise independent judgment. And there was a degree of separation between the White House, the presidency, and the Attorney General, and those operating under the Attorney General general, that's totally collapsed. I mean, even something. Take something as seemingly superficial as how often you will see the Attorney General, Pam Bondi, sitting in the White House with the president. It used to be that it would be relatively unusual, actually, that there would be as much communication. And now, not only do we have that in terms of the visual, we have individuals. The deputy Attorney General, Todd Blanche, and then the number to his deputy. Both were kind of defense attorneys and Trump's personal attorneys. And you get the sense that they are basically kind of carrying out the views of the presidency rather than implementing their independent views or the independent views of many of the career staff that for so long have kind of steered the ship of the Justice Department in a way that I think to get to one of your questions, gained or ensured a degree of credibility with courts. And, you know, maybe I'm overstating here, but I'd like to think some. Some degree of credibility with kind of the people of the country at large. Right. Like there, there was this notion that you would have Justice Department prosecutors who were, you know, neutral investigators that followed facts and applied law. Now, I'm sure there are plenty of people that disagree with that characterization. That was the experience I had, and certainly the colleagues around me, how I felt like. And I think one very good example from, from recent days is. Is the case of Ed Needler. I don't know if either of you saw this news, but one of the rare kind of heartwarming stories that I think that we've seen in recent days, so, just so. So everyone's aware of it. Ed Kneedler was an attorney who served for many, many years, since 1979, in the offices of the Solicitor General who represents the government of the United States. He has set the modern record for arguments in the Supreme Court. 160 arguments. He did his last at some point last week, which then triggered this quite rare moment at the very formal Supreme Court. After the argument, his final argument was done that the Chief Justice, John Roberts, sort of personally commended Niedler and said, you've practiced before this court with professionalism and with. With candor and then there sort of followed a standing ovation with the chief justice and all the justices kind of participating. And to me, in a way that was almost like a bit of a celebration or kind of a pie on to how things used to be, because it is just so, so different now. I mean, you will see in many of the cases that and we can talk in more detail about whether it's the immigration cases or the cases involving attacks on law firms or on universities, You've got attorneys who have recently come into the Justice Department. You don't see career attorneys. You see the kind of confrontational tactics that you've just that you just described, Scott, you see, you know, I don't think it's being underprepared. I think it's saying, like, I'm not I'm just not going to tell you court, you know, I'm not going to kind of be the candid Justice Department attorney that courts have come to expect. And if anything, of course, as I think we've talked about here before, one prominent instance of an attorney being candid in the immigration context was quickly placed on administrative leave and then fired. And so I do think it's different, as I said, both as a matter of theory and as a matter of the way in which the attorneys representing the United States, the Justice Department are practicing. I think that flows from the White House itself. I think I think that's the demeanor and the approach that the White House wants. I don't think that is in the long term best interests of the department and the country. But no one's put me in charge to make any of these decisions.
- [37:04]
Molly Iris
So I think that this also gets at something we were talking about a little bit earlier in terms of the role of Congress in the separation of powers system, which is that our system is not designed to have Congress or sort of have the courts serve as the basis for arbitrating whether everything that Congress has said the executive branch should be doing is actually happening. So this idea that we're in this world where and again, I think about this a lot in the spending context, where Congress has made decades of decisions about what federal agencies should look like, how federal agencies should spend resources. They've in some cases, designed systems themselves. In other cases, they've delegated the authority to the executive branch to design the systems. But they have sort of gotten the ball rolling on lots of questions about how the federal government is supposed to be operating. And the system is not designed to then have the courts come in and weigh in on every single thing that Congress has previously said about whether or not that's actually happening. So this is not how federal spending is supposed to work. We are not supposed to live in a world where Congress passes an appropriations bill and then when the money is not flowing as Congress intended, someone has to sue and say this is not working in the way it was the way it's supposed to. Our money is not flowing. Our money is not flowing, perhaps even after the court said it was supposed to be flowing like three weeks ago. And so it's just sort of even above these questions of what's actually happening in these cases and how is the Justice Department functioning? How is it arguing for the government's position in these various questions. I think it's important to remember we're in a lot of these situations. We're in a world that the separation of power system didn't even anticipate. This is not really how the branches are supposed to be interacting with each other.
- [39:09]
Scott R. Anderson
I think that's totally right from a outside of the current Congress sort of perspective. But we don't see the current Congress really taking this up at all. At least not totally, totally fair critique.
- [39:22]
Molly Iris
Of the current majority party holding control of both the House and the Senate. And not that many people make jokes about the congressional appropriations process, but the people who do make jokes about it have long said that there are really three parties in Congress. There are the Democrats, there are the Republicans and the appropriators. And one of the sort of, you know, much like James, thank you, thank you for laughing at my joke.
- [39:45]
Scott R. Anderson
I'm here for you. Much like we left the laugh track audio elsewhere.
- [39:51]
Molly Iris
Much like James has sort of sketched out things that, you know, from his vantage point have seemed most shocking to him over the last several months. This is one of the things that seemed most shocking to me from my vantage point is this willingness, at least publicly, of Republicans who have control over the discretionary appropriations process to say, you know what, I'm not going to step in here. Maybe I'm going to come and ask federal agencies to turn back on specific streams of funding for specific things that are in my own state or district. That's how I'm going to play this. But not to make a principled, full throated defense of Congress's power in this context. That's certainly one of the things that's been most surprising to me over the last couple of months.
- [40:42]
Molly Reynolds
Work management, platforms, ugh, endless onboarding it bottlenecks, admin requests. But what if things were different? Monday.com is different. No lengthy onboarding, beautiful reports in minutes, custom workflows you can build on your own easy to use prompt, free AI huh. Turns out you can love a work management platform. Monday.com the first work platform you'll love to use.
- [41:12]
Unknown
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- [41:42]
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- [42:31]
Scott R. Anderson
So I think it's clear that that has, you know, negative ramifications. What both of you describe negative ramifications for the Justice Department in the long term. Like the Justice Department, the executive branch it represents. When you lose credibility with the courts, you lose a lot of presumptions in your favor that the executive branch has traditionally relied upon. And Congress is almost self evident when you can't. Congress can't actually use the power of the purse as effectively as we used to think it could. That's debilitating. And there are things Republicans like to spend money on that Democrats might not like. And so if the shoes were flipped, they might not like a president in power to ignore things the way that President Trump is asserting the ability to do. Although again, we have not seen the conclusion the legal fight around this. But I want to get at something even more kind of fundamental and selfish about the Trump administration. Is this strategy actually effective for the Trump administration, particularly on the judicial side, but to some extent in Congress too? To Pull that in. We've seen in the first hundred days they've gotten what they want so far, it seems. But I come back to this question most recently of the Consumer Financial Protection Bureau, which we saw a pretty dramatic set of events over the last few days, where we saw a D.C. circuit initially essentially allow a preliminary injunction that barred RIFs to remain in place, but narrowed it, saying, well, you can pursue certain RIFs, the RIFs being the process by which they essentially fire federal employees. You can use certain RIFs if they're a particularized assessment. And CFPB's leadership came back and then did the exact same RIF they tried to do that was enjoined by the district court in the first place. Actually a broader RIF even was including more people than the one that was initially enjoying and then came back. And the D.C. circuit, which is a very friendly panel to the administration. Naomi Rao, George Katz, two Trump appointees, along with Nina Pillard, a Obama appointee, came back with Katz joining Pillard and essentially stopping and saying, nope, we're going to go back to the original preliminary injunction, framed it in kind of friendly ways, did it in a way that actually helped the Trump administration avoid what seemed likely to be some very tricky privilege questions that they were probably going to lose on, and some really potentially embarrassing testimony by Mark Paletta, Gavin Klieger, other people really involved in this effort that were going to be put on the stand by the district court judge. So some silver lining there for the executive branch. But the end, all of it, is the executive branch can't do the thing they want to do, which everyone agrees they can pursue some rifts, there's no doubt about that. The real question is just how broadly and aggressively and what do they have to do to justify. And then on top of that, because they played this game over the past week, they've disclosed thousands and thousands and thousands of pages of documents and discovery digging into this question of whether this is a particularized assessment, which the lawyers for CFPB have absolutely made gold out of straw with, really pulling out a lot of real tensions and a lot of ways that in ways that probably will strengthen their case on the merits and are embarrassing to the administration for people who are paying attention to this. So the administration is delaying getting what it wants. So is this even effective? Will it be effective in the end? And at any point are we going to see mechanisms in place that may correct them to go to a legal strategy that will be more effective at getting them what they want, which may be scary proposition depending on how you feel about it. James, do you have thoughts on this? Am I being overly critical and skeptical of them actually getting what they want out of this sort of approach?
- [46:01]
James Pierce
I think it's too early to tell. You know, I do think that and I think I said this or if I didn't, I'll try to say it more clearly here that the tactics in some individual cases or the demeanor of some attorneys before particular judges and the aggressiveness, frankly, with which the point you alluded to earlier, Scott, the government is appealing everything and going to the Supreme Court doesn't help its credibility and can backfire in ways. But I do think the long term play for the administration for the Justice Department is to get as much as possible into the Supreme Court where they think they by and large have a pretty friendly receptive audience to the idea, sort of it's big ideas, right. A powerful executive branch that can do things like control anybody who's in the executive branch, including people who are board members. On partisan balance, independent agencies potentially limit or curtail dismantle agencies within the executive branch under the same kind of unitary executive theory. And I think there are some of these strategies they will probably have better luck with than others. I think that independent agencies are probably not long for the world or at least the good cause removal protections there are not long for this world. But the kinds of funding related challenges and dismantling of agencies strike me as much tougher cases and certainly the early days of results that the Trump administration has had in the district courts and court of appeals. And I think your CFPB example is a good one there because I sort of take the point of that illustration is look there you've got, you've got a panel of judges that in some ways approximate what the Supreme Court looks like. Judge Katzis and Judge Rao are ideologically and jurisprudentially very similar to a number of the sort of conservative members of the court and thus often a very good bellwether for, for what you are, you might get there. And so in that respect, if you are getting the kinds of results that the government got in cfpb, that doesn't bode well for how you will do in the court. So, you know, I do think that the point is fair that look, is this administration overreaching? Yeah, I think it's quite possible that they're swinging for the fences on everything. I think it's hard to know how much they actually expect to prevail and how much of this is we're going to swing for everything. And if we hit, I don't know, 20%, 200 in baseball, that's fine. We've succeeded because we've gotten a couple of victories. I mean, even take the birthright citizenship example. Right. It seems roundly criticized by legal scholars. I too, for whatever it's worth, think that it's flatly inconsistent with the 14th amendment. I think Trump, when he signed it, sort of said, I don't, we don't know whether this is legal or not. My lawyers aren't really sure. We'll sort of take a crack at it. And that seems to be kind of what is, what is animating the strategy as a whole. And I'll go a little bit outside again of my, of my lane of thinking about this as just as legal strategy strikes me as just silly. But if, if the strategy is a broader political one where you're just gonna, you kind of, you know, try to push everything that you can and, and you think, yeah, we've got decent legal arguments here and on those other ones that we lose, we can, we can, you know, hammer away at the courts and say the courts are, are being obstructionist and trying to, to block our agenda. It's kind of like it's a win, win situation because you can show, you can show the country you're trying to implement all of the agenda. You know, get kind of get back to our first topic area, what, you know, in the first hundred days, how successful is the administration being and say, look, we've taken a crack at everything we wanted to do, you know, tackling dei, immigration, all these things. Some of them we've had some successes with and other of them, oh, you know, obstructionist courts and judges who are usurping the power, you know, that now all of that rhetoric is going to come back and hurt you in the courts. It's not going to actually advance your. But you know, that's where you query and say, how much do they care? It's not clear. You know, some of them I think they do, you know, some of these issues, I think you've got folks who do and others it's just a political spin. So bottom line, I think again, if I were directing this as a matter of litigation, I think they could be far more effective in how they litigate and in choosing areas like again, the removal context where I think they could have sort of targeted successful efforts. But that's certainly not the sense that, that as an outside observer I get looking at their legal strategy, such as it is.
- [50:58]
Molly Iris
Yeah. And I don't want to sort of overestimate the degree to which sort of detailed opinions on the part of the public are going to end up being a constraint on what the Trump administration chooses to do. But I will say that one thing that there's we have a pretty good sense of is that Americans don't like the idea of a president defying what the Supreme Court has said. And so when you, when you look at polling on these questions of what is the executive branch doing in the immigration context, you get sort of much more mixed feelings from people about, you know, deporting individuals who might be affiliated with a foreign gang without due process. But then when you frame it as how do you feel about the president defying an order of the Supreme Court, that's really unpopular. And so I think I don't disagree with anything that you've said in terms of the implications that this might have for their success in future court cases. But also, as we think about kind of what's happening outside of the courts, that the sort of thing that will get the public's attention is reporting that a president is ignoring a thing that the Supreme Court has told him to do.
- [52:15]
James Pierce
We're sort of right at that at that borderline right now. And I think it's really been interesting how the Supreme Court has tried to navigate that in certainly and I think probably most prominently in the immigration cases where, you know, it's early in the Abrego Garcia case, it's early sort of ruling where it comes back and says effectuate a release is too expensive. But, but you need to facilitate. And then we have all of this fighting by the Trump administration that seems to suggest it's very cramped reading of facilitate. And then, you know, in a different immigration case, somewhat unusually, the court, the Supreme Court very early intervenes and says in a case involving individuals who were, it appears, about to be removed under the Alien Enemies act, the Supreme Court says that these individuals are not to be removed pending further order of of the court. All of this means we are just, I think, very close to this world of an administration, a president who will or who might just not comply. And yeah, Molly, I think you're exactly right. The potential public and reputational consequences of that seem quite high. But we'll have to see if and when we get there, which I hope we don't.
- [53:31]
Scott R. Anderson
Well, I suspect we will have reason, may well have reason coming from the Supreme Court to talk about some of these possibilities little bit more next week or the week after on Rational Security. For the time being, let us move to Our third topic, a little further from the courts, but not entirely removed from it, we've received in the past 24, 48 hours, 72 hours or so, an interesting report. Kind of the tip of the spear of a wave of products coming from the minority in Congress, Democrats in Congress motivated in part, framed in part around this 100 days milestone, implicitly, if not explicitly, but this one focusing on Elon Musk, making the point that Musk's involvement in the Trump administration actions that he is involved in, particularly in breaking down the different federal agency and the regulatory capacity for them, implicates billions of dollars of potential liability he and the various companies he owns and is involved in could have across a number of fronts. The biggest chunk of them comes from consumer complaints about Tesla, consumer and safety complaints, a variety of Tesla claims. I think that's actually almost half of the total number, but there's lots of different buckets. Everything from safety of SpaceX flights to environmental reviews to various things about Neuralink, one of his less well known companies, about using technology that inserts in the brain and integrates with the neurological system. It is really kind of an interesting report, but it's always sometimes hard to tell how much is smoke and how much is fire in this particular context, because it is. While there's a lot of substance here, there's a lot of accounting, it's also wrapped up in a lot of rhetoric, rhetoric that we may sympathize with, some people may sympathize with, about the degree to which Musk and President Trump are pushing into the rule of law in a variety of contexts. But that that nonetheless sounds political in a way that isn't directly related to the content. James, I want to come to you first on this as obviously a practicing attorney, somebody with a little bit of exposure, more so than many other folks, to some of the questions in this sort of context. I know this isn't exactly your lane that you litigated and practiced in for a long time. I'm curious about your response, your thoughts and reaction to this report. Like, is there a lot of more smoke than fire? Is there real fire here? Is there like a real foundational concern they're speaking to here, even if they may be doing it and kind of amplified political rhetoric. What do you make of it?
- [55:59]
James Pierce
I spent a couple years focused on public corruption prosecution and no small part of that involved, particularly in the D.C. area, looking at officials who were essentially profiting off of their relationship with the government. So these aren't typically cases like bribery cases, but they are Conflict of interest prosecutions. And in fact, the report I noticed in a footnote somewhere cites one of them. This is I think the section 208 of title 18 of the, of the criminal Code. And a lot of what the report lays out do raise for me with that kind of public corruption prosecutor hat on serious questions about sort of a way in which somebody, Musk is benefiting, profiting from his relationship with the different federal agencies. And you know, I'm not sitting here saying that that is a easily makeable federal prosecution. Not even clear that federal prosecution is, would be appropriate. It's conflict of interest statutes are very, very hard to prove up often. There's a lot going on. I mean, surely here I would assume Musk would say, yeah, okay, I mean some of my companies benefit, but so do lots of things from what I'm doing, right. I'm here trying to cut federal spending and improve the efficiency of the federal government. If that has some incidental benefit on companies that I run, which by the way are very productive contributors to the economy, you know, so be it. Certainly my intent was not just to come in and do that. And so a prosecution would be a challenge. But the general kind of topic or what the report is getting at is something that I think is quite troubling. Interestingly, I draw sort of a parallel. This may come a little bit out of left field, but recently South Africa has been trying to develop an independent kind of public prosecutor to focus on corruption. And one of the biggest issues in the, in sort of post apartheid politics has been a question of state capture. The idea that essentially kind of powerful economic actors come in and can capture government and then put it to work for them rather than it working for the people at large. And I think for South African native Elon Musk, you know, I think there's a non trivial argument that, you know, what this report basically gets at is the way in which his efforts kind of amount to a version of state capture. Yeah, I think there's some troubling things about the report that should make us concerned. Even if I agree, I found some of the rhetoric a little bit uncomfortable for a government attorney used to government gray language.
- [58:41]
Scott R. Anderson
Molly, I want to come to you to fill in the congressional side of this. Obviously this is a congressional product and as I mentioned, it's actually one of a couple of ones including some that rolled out today, which maybe you can shed some additional light about some of the other facets of this broader strategy that appears to be coming out of Democrats in Congress. And it's not unusual. Right. Like, we saw things like this all the time when Republicans were in the minority during the first term, first two years of the Biden administration to some extent, not always, maybe as well supported as it is in this case in terms of facts and figures and accounting and along with some of the other products. But nonetheless, this idea of that you have the minority engaged in critical investigations, producing documents that make sometimes very bold claims critical of the incumbent administration. Does this strike you as just another species of that traditional practice? Is there something that makes us more credible, more effective? And is it a sign that there is a strategy that has emerged among Democrats who have taken a lot of criticism in the last few months for not really effectively pushing back on the Trump administration as it is flooded the zone, to use its own terminology, with a range of actions that are policy wise anathema to Democrats and legally questionable in the eyes of many.
- [59:55]
Molly Iris
Yeah. So I think it's really important to remember that by virtue of being the minority party in both chambers, Democrats only have so many levers they can pull, including levers they can pull in the investigative context. But because the Senate's permanent Subcommittee on Investigations is sort of a special institution, it is actually a place where the minority does have some resources it can deploy and some powers it can use to produce things like this document. So the Permanent Subcommittee on Investigations is a subcommittee, permanent one, as the name suggests, of the Senate Homeland Security and Government Affairs Committee Committee. And its entire purpose is to do investigations. So most congressional committees or subcommittees have competing priorities. They might be trying to process legislation. They might be trying, in the case of Senate full committees, process nominees, and then they might also be doing investigations. PSI's whole job is to do investigations. So it has sort of a single focus. And importantly, its rules allow for the minority staff, with the approval of the ranking minority member and with notice to the chair, to undertake preliminary inquiries. The minority has the right and resources to direct its own inquiries in a way that we just don't see on a lot of other committees. So I think that's a really important just sort of institutional point to like, how did we get this product in the first place? And I do think it speaks to kind of, as you were getting at, Scott, this emerging. I don't know if strategy is the right way to describe it, because I think that would assume some kind of central direction to other members of the party on how they should be proceeding. But we are certainly seeing more efforts by Democrats to use some of their powers to make things as uncomfortable as they can with the limited amount of authority they have for the Trump administration. So we have things like this report. There's a new tracker is what they're calling it out today from the Democratic staffs of the House and Senate Appropriations Committee that catalogs at least as of this moment, 400/plus billion dollars in disrupted federal spending as the results of various Trump administration actions. And so you can see, you know, are these grants that were canceled, are they streams of funding that have been frozen, so on and so forth? This is a very comprehensive and useful resource if that's something that you are watching in the House. We're actually starting to see some House members introduce what are called resolutions of inquiry, trying to require the executive branch to produce certain kinds of documents and information. There are ways that the majority in the House can circumvent Democrats ability to do this. But again we're starting to see and I think the last time I was on Rational Security, Scott, we talked about attempts by Democrats to force votes on ending the national emergencies that underlie the tariffs. If that wasn't the last time we've talked about it before, wrote a piece.
- [63:10]
Scott R. Anderson
On it if I recall.
- [63:10]
Molly Iris
Yeah. So you're starting to see some places where again with the relatively small amount of institutional power Democrats have, that they are trying to pull those levers. Kind of a separate question from are they doing? They're certainly not pursuing what you might call a maximalist strategy. And we could debate whether that's what they should be doing. But we're seeing things and this is in that context.
- [63:37]
Scott R. Anderson
So before we wrap one last question for you all, the clear sign is that there's concerning things happening here, whether they may be a little inflated for political rhetorical reasons or not. I think it's clear that there is a concern here. But accountability doesn't seem likely to come under this White House from a legal perspective, except maybe under extraordinary political pressure. They'll curb some of the worst behaviors, but seems unlikely to stop as a whole. Musk suggests that he's still going to be involved in the administration even if he's no longer doing the day to day Doge work as he has been for the last few months. So where does accountability come from? From at the end? Statute of limitations still run past four years presumptively. So at least there'd be maybe a couple of years a new administration where you could pursue criminal violations if there's no pardon. But pardon certainly seems plausible. Are there mechanisms for accountability outside of pure politics at this point for any of these sorts of realms, or is there a way Congress might be able to restore them if under different control in the future?
- [64:38]
James Pierce
My experience is often has been through, through prosecution. And I think you're exactly right. I mean, not only because the nature of the, this current administration's approach to corruption law, let alone its relationship with Musk, you're just not going to see any, any action, I think, in this, in this area. I think that what everyone's views of the rhetoric of the report aside, I do think it's at least important to document and preserve this information and to then keep it available so that there is a record of it in the future. But I don't, you know, I'm not sure that there's an obvious answer or certainly one doesn't occur to me about accountability. I mean, I think with so much of it, it's, it's, if this is something that is of concern to the public at large, then accountability comes through the ballot box and there is the voting in of, you know, new representatives and potentially an executive branch of president that takes a different view of it. So to me, that's the, that's the most compelling form of accountability. And it'll be interesting to see whether kind of like our earlier conversation about the possibility of the administration not complying with orders, the possibility of the administration enabling, facilitating grift, does that. Is that something that, that triggers a kind of political response? Because that strikes me as the most, most available mechanism for accountability. Though it is a bit odd to think about the idea of the electoral process as one of accountability. But ultimately that's what is, I think, the way to express displeasure with the way government's being run. So maybe Molly has a better suggestion, but that's kind of all that occurs to me.
- [66:20]
Molly Iris
Yeah, I think one thing that's really hard to think about in this context is that to the extent that we have historical examples of when Congress has stepped in after moments of sort of crises of government corruption, they by and large come from earlier eras with different party arrangements and with eras where we had, where Congress had much more of a sense of kind of institutional pride and responsibility and this notion that its job was to step in and legislate to prevent this kind of political corruption in, say, the executive branch or in other situations in Congress itself. And right now we're living in a period where kind of partisanship and concerns about your party's prospects for winning the next election often trump these sort of, no pun intended, these sort of institutional concerns and these concerns about having sort of effective Conflict of interest rules, that sort of thing. And the last thing I'll say is that even in the current moment, when we have seen Congress try and hold the executive branch accountable for various kinds of overreach, we've also seen then, you know, executive branch headed by a different president come back in and just roll back those, those choices. And so here I'm thinking, and this is like a very weedsy example, but I think it's a good one, which is that one of the few things that Congress did do in response to things that happened in the first Trump administration, kind of institutionally, was Congress passed a law that required the Office of Management and Budget to publicly disclose what are called apportionments, which basically is when OMB takes big pots of money that Congress has appropriated and apportions them out to individual parts of individual agencies and parts of agencies. There was an apportionment issue at the heart of the first Trump impeachment. And one thing that again, Congress managed to do on a bipartisan basis during the Biden administration was say no, omb, you have to publicly disclose when you are making these decisions so that Congress, the public, knows how this is happening to prevent this particular kind of abuse in the future. And then, I don't know, four, six weeks ago, OMB took down that database and said that they believe it to be. I forget exactly what the rationale they used was, but they said that they don't have to do it. And so it is no longer there. Our friends at Protect Democracy are suing to try to get it back up. But this is again, one very specific thing that just illustrates the limits of even legislative accountability. When you have an executive branch in the future that's totally willing to disregard what Congress has said.
- [69:24]
Scott R. Anderson
Well said, and I agree with all of that. Although the one facet of this that never gets talked about enough that I think we're going to see more in play as people explore is potential civil liability and remedies. You can think of everything from competitor standing, competitive bidding requirements, false claims Act. In certain contexts, there are actually hooks out there, tricky to apply. But frankly, when you see patterns of this sort of behavior and large dollar amounts and other businesses getting muscled out, the incentive to pursue what might otherwise be creative or slim odds, legal remedies increase. So I think if this trend continues for a little while, we might see some interesting evolution in that realm. And that is, of course, something a future Congress could help supplement if they wanted to, to some regard. But that is a topic for another time because for the moment 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 until we are back in your podcatcher next week. Molly, what do you have for us this week?
- [70:19]
Molly Iris
So recently I was on a flight from California back to Washington D.C. and I made the mistake of starting to watch a television program that is made by the BBC. So then when I got home and I wanted to watch the rest of it, I had to get a Britbox subscription. All that being said, the show is called Blue Lights. It is sort of in the American press has been described as like a Northern Ireland equivalent of the Wire, which I think is a mostly fair, fair description, but it is about some rookie police officers in Belfast. There are two seasons, they recently announced they are making two more. It is very good if you, for whatever reason either already have a Britbox subscription, which I think the only way to watch it in the US or are willing to get one for a short term basis to watch it, but I highly recommend it.
- [71:11]
Scott R. Anderson
Wonderful. Great suggestion. Well, for my object lesson I saw a really phenomenal video that will encourage everyone. For folks who are not DC locals have not been paying attention. There's been a big debate happening about the Washington Commanders and where they will be building their new stadium. We saw a big development of this about this earlier this week where the mayor, Mayor Bowser revealed a deal with the Commanders to potentially replace our long neglected former Washington football team stadium RFK and build it with a new stadium along with a huge development of a new neighborhood and all sorts of stuff adjoining to that. There are fair reservations about this, fair concerns, but I for one am very excited about it. As a DC level local and DC born and raised person, some of my earliest memories are going to rfk as a 4 or 5 year old with my father getting beer dumped on me by a bunch of men in Monks habits. Those were Monks. Monks, the fan base of Art Monk, a phenomenal player from back in the day and it was completely terrifying when you're four or five years old. If I'm being honest, I think it turned me off professional football for most of my teenage years, but since I've gotten back into it in my 30s, I'm really excited about it. I'm really excited about the stadium. I cannot urge you to watch this video enough because they gather so much footage of excited football fans from the 70s and 80s back when Washington was in its heyday. It is really a phenomenal thing to watch. It's very schtick you can see what was the most terrifying part about the RFK stadium, which is that it actually bounces up and down as people jump on it. When you. Again, when you're four or five, it's completely terrifying, but it looks like a lot of fun. I've gotten to go back and do that at D.C. united games on occasion. So, long story short, I'm excited about it. Not without reservations, but generally very excited about it. Encourage you to check out the video, maybe make you excited, too. It's been rough days in D.C. lately. I think it's gonna be a rough couple of years. But this is one thing that has me excited for the future. James, bring us home. What do you have for us for an object lesson this week?
- [73:03]
James Pierce
So I wanted to share a pretty delightful culinary experience that I'd had recently, which is a visit to a revolving sushi restaurant close to where I live in Rockville, Maryland. And I don't know if either of you have ever had the opportunity to do that. I had not. And probably the novelty of it was as exciting as the food itself. But to give a sense for those who've never been. So the way this place worked, at least, was you sit down at your table, and there's a conveyor belt that runs the length of the restaurant going by all the tables and their little plates of sushi, and then a little kind of label of what it is, and you can sit there and if you're so inclined, you just sort of pop it out of the. Out of the conveyor belt, and you've got your meal. But, you know, if. If you want to go off the menu, you've got a way to. They have essentially a little iPad on the table, and you can order something. And then depending on what you've ordered, if it's. If it's sushi, they have a little kind of a shot ship that's on its own separate conveyor belt that will come out and kind of wend its way around this table and that table. There's always this excitement when you see a ship go off. You don't know whether it's yours or somebody else's, so you're just hopeful it's going to stop at your table. One of my daughters was sort of scheming, well, what happens if I like the one that's coming by that's going to another table? Can I just, you know, reach out and snatch it? Don't. Don't do that. So that's one of the ways that they bring you things. But then you, you also, if you order certain other things like edamame or if you want mochi or something afterwards, they've got these kind of high chair looking robots that come out and will arrive at your table and announce that they're there and tell you you've got, you know, to please take it. And then once you've taken it, they sort of, they will, they will say goodbye. And every once in a while the two of them will run into each other and they'll sort of, they'll talk to each other. One robot will say, you know, kindly please move. And the other one will have this giant emoji of a kind of anxious face as they try to negotiate space in the restaurant. So the food was good, but, but the experience as a whole was, was probably just as much the delight as, as the eating was so highly recommended. Revolving sushi if you've never tried it.
- [75:07]
Scott R. Anderson
Wow. Interesting. It makes me sad that the people who drive the little carts at dim sum are going soon to be put out of business. But still, regardless, you know, it's the future. I guess there's not much we can do about that. With that, that brings us to the end of this week's episode. Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfairmedia.org for our show page, for links to past episodes, for our written work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series, including Escalation, our podcast on the war in Ukraine and US Ukraine Russia relations. Check it out today. While you're at it, be sure to follow Lawfare on social media, wherever you socialize your media. Be sure to leave a rating 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 lawfaremedia.org support our audio engineer and producer this week was me, with a little help from Kara Schellen of Goat Rodeo, and our music, as always, was performed by Sophia Yan. And we are once again edited by the wonderful Jen Patcha. On behalf of my guests Molly and James, I am Scott R. Anderson. We will talk to you next week. Until then, goodbye.
- [76:16]
Paige
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- [76:56]
Unknown
This is Paige, the co host of Giggly Squad. I use Uber Eats for everything and I feel like people forget that you can truly order anything, especially living in New York City. It's why I love it. You can get Chinese food at any time of night, but it's not just for food. I order from CVS all the time. I'm always ordering from the grocery store. If a friend stops over, I have to order champagne. I also have this thing that whenever I travel, if I'm ever in a hotel room, I never feel like I'm missing something because I'll just Uber Eats it. The amount of times I've had to Uber Eats hair items like hairspray, deodorant, you name it, I've ordered it on Uber Eats. You can get grocery alcohol everyday essentials in addition to restaurants and food you love. So in other words, get almost anything with Uber Eats. Order now for alcohol you must be legal drinking age. Please enjoy responsibly. Product availability varies by region. See app for details.