Loading summary
Transcript88 lines
- [00:01]
Scott R. Andersen
The following podcast contains advertising to access 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, Rational Security Chatter, Lawfare, no Bull and the Aftermath.
- [00:32]
Kevin Fraser
A Real.
- [00:33]
Scott R. Andersen
Lemonade Pet Insurance Review by Madison H.
- [00:35]
Madison H.
You know, I thought it was a little ridiculous to get pet insurance, but I really didn't want to not take my little kitten to the vet because of money. In the last eight months I've taken him in six times because of ear infections and saved literally hundreds of dollars. You may even need to get surgery and I couldn't consider it without Lemonade's help. I recommend Lemonade to all my friends constantly and now I'm recommending it to you.
- [00:58]
Paige
Ch it out@lemonade.com pet this is Paige.
- [01:03]
Anna Bauer
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. A friend stops over, I have to order champagne. I also have this thing that whenever I travel, if I'm ever in a hotel room, I never feel like I'm missing something because I'll just Uber Eats it. The amount of times I've had to uber eats hair items like hairspray, deodorant, you name it, I've ordered it. On Uber Eats. You can get grocery alcohol everyday essentials in addition to restaurants and food you love. So in other words, get almost every anything with Uber Eats. Order now for alcohol. You must be legal drinking age. Please enjoy responsibly. Product availability varies by region. See app for details.
- [02:06]
Kevin Fraser
Kevin as our in house AI guru, you'll be happy to know I have been playing around quite avidly on Gemini. Having recently discovered that we, by virtue of our Google platform at work here at Lawfare have access to Gemini and Gemini Deep research. I have to say it's pretty impressive. I've had it draft. I've been a brutal, brutal partner to my digital junior associate. In terms of the sheer volume of memos and meaninglessness of the memos I've assigned to it. It's maybe I should say junior Summer associate, but all around I've been pretty impressed. Anna Tyler I know I flagged for you guys. We have Gemini and deep research through the work accounts. Have you guys gotten to play with it at all yet?
- [02:45]
Paige
Well, first, I just want to be clear. This will not replace the lawfare internship program for the foreseeable future. We still love our interns.
- [02:52]
Tyler McBrien
Gotta add that caveat for the foreseeable future. And I don't mean that to offend the interns.
- [02:58]
Kevin
I have not tried it yet. I'm kind of a Luddite and I, like, don't really try a lot of new technology. My friends tell me that I would be better off with a flip phone because I so often just don't know how to do anything. But I did try ChatGPT, like two weeks ago for the first time, just like the free version, and it went terribly. I decided to use it as I fed it, like, a bunch of court declarations about Doge, because I wanted it defined, contradictions in the various declarations of what people were saying on one date versus what they were saying in a different case on other dates. And so I gave it like a bunch of different exhibits and it kept making things up. Like it would make up names that I would be like, wait, who's that? And then I'd be like, are you sure that that's a real person? And they'd be like, oh, actually, you're right.
- [04:06]
Kevin Fraser
Maybe ChatGPT knows more than you do. We know they're using AI. Maybe they've got a little inside track.
- [04:12]
Tyler McBrien
It may have gotten the pronunciation of Judge C. Cinnies correct. Well, before anyone else who knows, I.
- [04:19]
Paige
Will say I did an Anna Bauer adjacent thing I've just remembered. On ChatGPT, I wanted to make a who is the administrator of DOGE logo, but in the style of the more, you know, rainbow from the 90s.
- [04:32]
Kevin Fraser
Pretty good job. Hello, everyone, and welcome back to Rational Security. I am your host, Scott R. Andersen, back in the swing of things after having to, much to my surprise, surprise of many, cancel an episode last week due to some logistics considerations that we did not fully plan out. So sorry about that, listeners, but thrilled to have you back this week as we invite you to join members of the lawfare team to talk through the week's biggest national security news stories. And thrilled to be joined by a trio of my lawfare colleagues this week, including our intrepid legal correspondent, Anna Bauer. Anna, thank you for coming back on the podcast.
- [05:13]
Kevin
Happy to be here.
- [05:14]
Kevin Fraser
Lawfare managing editor, Tyler Spicey. Tyler McBride. It's weird because Tyler Spicey. McBrien. It sounds like I'm modifying McBrien, but it's very spicy. Tyler, we got to work on this, but Tyler McBrien, thrilled to have you back on the podcast after a globetrotting couple months away.
- [05:28]
Paige
Good to be here. People usually just add in whatever they want after MC, so I don't know. Tyler McSpicy. I don't know. It's pretty adaptable.
- [05:34]
Kevin Fraser
McSpicy, Brian, is kind of the, the fish fillet, different sandwich sort of option. The McRib, the McFish filet, the McBrien option. I like that. I like that. It's a good, it's a good marketing technique if nothing else. And you wearing yellow and red clothes almost entirely, which is good. It makes everyone hungry just watching and talking about the McBrien sandwich. And of course, Kevin Fraser, our AI expert, senior editor extraordinaire. Kevin, thank you for coming back on the podcast.
- [05:59]
Tyler McBrien
Howdy. Always a pleasure. Thanks for having me. And I just wish I could have a MC Frazier sandwich, but it's just not in the cards. So I'm jealous of Tyler.
- [06:07]
Kevin Fraser
No, just tossed salad and scrambled eggs. We'll just have to stick with that for the time being. Thank God you're old enough to get that reference. Neither Tyler or Anna did, I'm fairly confident, but at least Kevin got it. Maybe a little bit. Still thrilled to have you guys here for as we dig through a number of the big stories from this week's headlines, there's a lot happening on a lot of different fronts. We thought we'd pick out three stories of particular interest to us and hopefully to you, dear listener. Topic one for this week, aliens versus predators. Despite forceful legal pushback, including by the U.S. supreme Court, the Trump administration is working hard to continue its campaign to remove foreign aliens it accuses of pursuing a predatory incursion from the country using the alien enemies acting. How far will it go and to what extent? Can the courts or anyone else stop them? Topic 2 Aye Aye Robot Both the Biden and Trump administrations have been fans of artificial intelligence and set out policies to incorporate it into government decision making. While the Biden administration spent a lot of time thinking about guardrails, the Trump administration has increasingly torn them down as part of a broader push to incorporate the nascent technology into government decision making. What are the risks and potential benefits of this sort of government? By AI and topic 3 for Pete's sake. Beleaguered Secretary of Defense Pete Hegseth is more beleaguered than ever this week after reports that in addition to inadvertently sharing classified secrets with Atlantic reporter Jeffrey Goldberg, he also passed them to his wife, brother and personal lawyer on a different signal thread. Meanwhile, a former advisor and well established Trump loyalist went public this week with allegations that Hegset's management at the Department of Defense has led to chaos and called for his resignation. Will this be enough to finally force the Trump administration to cut bait and run? Or does his support in the megasphere simply run too deep? For our first topic, Anna, I want to come to you as somebody who has been following these matters very closely. This story about how the administration is pushing ahead with the Alien Enemies act removals at this point, or at least trying to at this point, despite intervention not once but twice really by the US Supreme Court by a 7 to 2 margin in this most latest event is pretty interesting. We have kind of three fronts. I think that we're following this on maybe four fronts depending on how you divide it. We have on the one hand the original sort of litigation coming in what is the D.C. district Court and then D.C. circuit. This is the JGGV Trump case, or what was the JGGV Trump case, which was the initial effort to kind of stop the initial set of flights where we saw a last minute effort to stop a number of flights to El Salvador carrying Venezuelan migrants being removed under the Alien Enemies act and a dispute over whether the government adequately complied with the order issued by Judge Boaswerk trying to stop those flights in their tracks. An order that did not succeed, at least if that was its objective, as certain individuals did end up relocating to El Salvador. We also have then another front that's opened more recently, just over the last week, where we've seen reports that another flight was preparing to depart, this time from Texas, where we saw another emergency intervention spearheaded by the ACLU that went first to District Court, then to the fifth Circuit and after failing that ultimately Supreme Court that did intervene and stop or direct the government to hold off on removing anybody pending additional proceedings. And on that particular case. And then we have the case of Mr. Kilmar Abrego Garcia, an individual who was removed as part of the initial proceedings, that initial set of people taken to El Salvador, but that the government has now conceded was in fact removed by accident, or at least some government officials have conceded as much, but is resisting the effort to bring him back, despite directions to facilitate efforts to do so by the District Court. That appears to be backed up by the U.S. supreme Court. And that's in addition to a couple of different habeas actions that are popping up prim in Texas, but also in other places around the country for individual detainees, as the Supreme Court has directed that that should be the avenue for challenging these sorts of actions, not actions under the Administrative Procedures act, like the initial challenge we saw brought before Judge Boasberg. That is a mouthful. That is a lot of legal terrain. Hopefully I got most of it mostly right. But talk to us about where you think the action is. What are you looking at right now in terms of the big deciders? What is the state of these different fronts, and what kind of moment are we at in terms of the broader arc of this story of what the Trump administration is trying to do and the types of pushback we're seeing institutionally from different corners?
- [10:27]
Kevin
Well, yeah, I mean, there's a. You. It was a great summary, Scott. You did a great job of explaining at a high level and without skipping over the important details of exactly where we are in these various cases, I believe that where we're at, and it is actually really hard to keep up with all the moving pieces in this, and even for us who, you know, do this for a living. But right now, I think that we're waiting for any further order of the Supreme Court. In its order, it mentioned that, you know, that there should be no further removals until further order of the court. The briefing is complete there following the response or reply from the ACLU after the solicitor General filed a further brief in that case. And so we're still just kind of in waiting mode as it relates to what's known as the AARP case. That's the one that went up to the Supreme Court. There was supposed to be a further hearing in the JGG case, which is the one before Judge Boasberg. And as you mentioned, he, or I believe you mentioned, he ultimately declined to intervene after they held an emergency hearing on Friday before the Supreme Court had ruled on the matter. Judge Boasberg in that case, there's still a number of outstanding questions regarding, of course, the contempt order that he issued, but then also the question of, you know, how to what extent does he retain any jurisdiction over any of the individuals who initially he had pending before him? So there's still ongoing things. That hearing that was supposed to be held on Monday before Boasberg was ultimately stayed. So the main action is that we're waiting for the ARP case before the Supreme Court. But what I've been focusing on has primarily been the Brago Garcia case, because in that case, there is a number of moving parts as well. I think that the last time we discussed the case on various lawfare podcasts or the live show, it was after a hearing held in that case. The government has been ordered, of course, by the Supreme Court and the district court to facilitate the release or return of Abrego Garcia. The judge ordered a period of discovery that is supposed to occur over, you know, two weeks. It includes interrogatories, depositions, requests for production of documents related to what steps the government has taken to facilitate Abrego Garcia's release. And today, this morning, we kind of got an update on what's been happening in. In terms of what the government has produced, which is, according to the plaintiffs, not much. In. In that case, the plaintiffs have requested a number of things. They submit, submitted, you know, requests for written responses to questions like what steps has the government taken? Those kinds of things. Again, very simple questions trying to get at the heart of the issues that. That the judge has ordered the government to reveal information about, but then also that the Supreme Court in its said the government should be prepared to reveal what it can about what steps it's taken to facilitate Abrego Garcia's release. So in response to all these questions, the government, at multiple points, responded by saying, we object based on the state secrets privilege. We object based on deliberative process privilege. We object based on attorney client privilege, invoking numerous privileges. Essentially, the only real substantive information that we get in these interrogatories that the government did not, you know, invoke some kind of privilege over is the claim that they, after the court's order, engaged in what they call appropriate diplomatic conversations with El Salvador, but that they can't reveal any more information about the content or circumstances of those conversations because of the various privileges that I just noted. Noted also, astoundingly, I mean, it's not surprising given everything that we've seen over the past few weeks from DOJ and the way they've been acting in court and. And in their filings. But at one point in these interrogatory objections and responses, the government repeatedly makes the claim that they object based on the, quote, false premise that the government has been or can be ordered to facilitate the release of Abrego Garcia from custody in El Salvador. Now, people who read the Supreme Court's order on this very closely know that that is a complete misrepresentation of what the Supreme Court said, because quite literally, the Supreme Court said that Judge Sini's order properly requires the government to facilitate the release of Abrego Garcia from El Salvador. Literally the same language that the government says it has not been ordered to do. I found that just really Shocking, even though, again, it's not totally surprising given some of the representations or lack of information that DOJ has had in the past several weeks as it's been going into court and making filings in this case. But that's kind of where we stand now. We're waiting. Both parties requested a hearing before or a conference before Judge Sinis on these discovery disputes. We also did learn from these filings this morning that one of the people who's been a declarant for the government, Joseph Mazara, I believe he, his title is Acting General Counsel for dhs. He was set to be deposed this morning. And so they asked Judge Sinis to hear all these disputes out. I think one of the interesting things about the fact that this discovery dispute is ongoing, that these depositions are moving forward, is that all the while, the government has not gone to the Supreme Court to ask it to, you know, overturn the earlier decision by the 4th Circuit. They at one point last week went to the 4th Circuit and said, you know, can we? They basically were challenging Judge Sinas's discovery order, and then also her amended order requiring them to facilitate the return of Brego Garcia, 4th Circuit, shot them down with some really, a really remarkable opinion by Judge Wilkinson. The government has not now gone to scotus. I think the fact that they seem to be engaging more at the district court level on these discovery disputes suggests that maybe they're not going to go to SCOTUS right away. Wait until the judge makes some rulings on some of these discovery issues and then we'll see. But, Scott, I'm really curious what you make of the invocation of some of these privileges. You know, particularly the state secret privilege. That's the one that they've also invoked previously in the JGG case before Judge Boasberg. What do you make of that? And, you know, how far do you think some invoking some of these privileges can get them in terms of dragging out these discovery disputes or resisting their request from the plaintiffs and the order of the judge in terms of forking over some documents and responses?
- [18:30]
Kevin Fraser
It's a good question, and I've been really surprised, frankly, that it's taken this long to get to this point. Although notably, I think the prior invocation in the Boseberg JGG case of state secrets privilege kind of got mooted out in a way, it seems like, because the questions it was aimed towards about compliance with the judge's order really ended up not implicating the stuff that state secrets privilege was invoked in relation to. So here that doesn't seem easy to avoid. The thing about state secrets privilege is that usually it is designed to protect the government like a lot of other privileges, including some of the other ones they've invoked here that I'm less positioned to comment on without knowing the specific facts. Is this idea that you are preserving information, protecting it from public disclosure or to the disclosure of the other litigant of third parties, not to the court. Actually like a traditional way of handling state secrets privilege is for courts to review ex parte and in camera the relevant information. Often they do that in part to say they review it and they say, well, as part of adjudicating, well, is this properly within the scope of state secrets? Which is a, I think it's fair to say, a fairly fuzzily designed doctrine. It is not something the executive branch just gets to invoke willy nilly at their great discretion and the courts have nothing to do about it. The court defines the contours of the state secrets doctrine. It is an entirely judge made doctrine. It doesn't have a root in statute, unlike, for example, like the Classified Information Protection Act, a kind of statutory corollary in the criminal context. So I think the government is way out of limb on this and I think they know that. I don't think that they have kicked every borderline competent lawyer out of government. And some people they have brought in know what they're doing on the legal front. And so I think they know this is just a stalling technique. At this point, I'm not exactly sure where it gets them. I think this administration just has a general strategy of just trying to kick and scream over being compelled to do anything it doesn't want to do and picking a lot of very symbolic stances. And this is another front it can use to kind of wage that battle, force them to do not just the. I think it was two weeks of discovery that Judge Sinis has, has directed, but also go further and say now we're going to have to have extended procedures about state secrets privilege. Although again, I don't actually think it's that complicated an issue and I feel reasonably confident that the judge is going to be in good shape going up on a lot of this, particularly if they just refuse to even share it with her for the sake of a contempt determination or whatever else may be relevant here. So it is like really, really a strange posture. What I worry about, what I am concerned about is that is this a sign the Trump administration really wants to fight this all out on remedies, not the actual merits of the law is the fight they want to have at the Supreme Court, whether the courts can hold them in contempt for this sort of action or even prosecute them under a Rule 42 motion if they refuse to prosecute contempt against their own officials. Basically, like, is there a remedy at the ultimate end of the line? And that is where you get to something that. Closer to what I think of, with a relatively high bar as a constitutional crisis, which is where there's clearly indisputable unlawful conduct that nobody thinks is even plausibly arguing is lawful anymore, at least in the eyes of the courts, of the institutions assigned to interpret the law and our system. But there's no remedy for correcting it within the at least short of like a change of the political system. That's a real crisis moment. We haven't been there yet, but we inch closer. And I worry a little bit this is a sign that that's the game the administration wants to play. That said, it's a real game of chicken before you get there. And I, I still would put my money on them swerving in the end because they may not like where that puts them politically or in other domains.
- [22:16]
Paige
One thing that listeners may be wondering about, and I say that because I'm wondering about it, is the news a few days ago that Judge Boasberg, in his order, said that the Trump administration may be held in criminal contempt. I'm just curious if maybe Anna or Scott, if either of you know the latest on that order.
- [22:39]
Kevin Fraser
So my recollection is, and this call came out while I was traveling last week, so I might be a little fuzzy on the details, but is that Judge Boasberg came out with this determination without actually ordering anyone in contempt, basically concluding I have a basis for, I think, probable cause, the standard being applied that at least explored that contempt was available and then specifically talked about the possibility, if the government doesn't pursue contempt, of appointing someone under Rule 42, but didn't actually order anything at that point. The government immediately, almost immediately appealed that to the D.C. circuit, in part, I think most people suspect, because they have a very friendly emergency motions panel there right now, or relatively friendly compared to the average panel they're probably going to get in May when the new panel sits down, even though it's the type of order that you wouldn't normally think of as appealable, because the court hasn't actually done anything, they seem to be trying to appeal it and have succeeded to some extent. They essentially had the panel administratively stayed, I think, over. If I recall correctly an objection by Judge Pillard, who is the Obama administration appointee. Judge Katzis, Judge Rao are both Trump appointees on this emergency panel. Over Pillard's objection, they did put an administrative stay on the district court's contempt order. Kind of related order, I think, is how they describe it in the docket. As I'm looking at it, what that means is a little unclear because again, the judge didn't order anything to happen necessarily quite yet, but it's administratively stated. There actually may have been some disclosure obligations or something to that effect. Certainly additional briefings, additional hearings are held because right now the district court doesn't have jurisdiction over it. It's on appeal with the D.C. circuit. That's a little bit of a delay tactics. Briefing is due this week. I don't believe it's complete yet. I think it'll be Friday. If I recall correctly aligning my calendar up with what I'm seeing on the docket. We'll have briefing this week and then we'll see what the D.C. circuit says about that. They may well come back and say this isn't appealable at all. That may be their ultimate conclusion. But. But the government got a week of additional delay out of it, if nothing else.
- [24:35]
Kevin
So I actually have a question on the contempt issue. And this goes to what you referenced earlier, Scott, about what the end game here is. You know, you made the point that maybe what the government is doing with all this seemingly systemic contempt is that it wants to eventually litigate this question of remedies. And you know, is Rule 42, which would allow a judge to appoint a special prosecutor to prosecute contempt if the government doesn't do it, Is that constitutional? Can you hold the President or the Attorney General or whoever else are the relevant actors in contempt? Those kinds of questions may be what we're getting to. And I guess that what I don't understand is kind of like what is the purpose of getting to an outcome where maybe they want the court to say, you can't hold the government in contempt, you know, Rule 40, you can't do Rule 42 when you know, they're facing the reality that there will eventually be a change in administration and what is then to stop a Democratic president from, you know, doing whatever with his or her DOJ and doing all the same sorts of lawless actions, but with policies that this administration would disagree with. So, like, I guess I just am not really sure like what's going on here in terms of where the kind of long term vision is in terms of once there is an administration change, like why would you be so keen to get these remedies questions litigated in such a way when eventually things will change politically?
- [26:33]
Kevin Fraser
It's a fair question. Look, I mean, I think the most skeptical of people would say it's because they don't intend to have elections. Again, I don't think that's correct or accurate or really achievable. I don't think that most people even in Trump administration would say that's. They certainly wouldn't say that's the case. I don't think they actually believe that's the case either. I think we will see as we get close to 2026, political calculations will be more important. But I do think in this particular moment they practically are kind of short term oriented. I don't think this is necessarily maybe a big strategic question. This is a manner of achieving short term goals that people either are really ideologically committed to and or think will be politically popular and otherwise favor for a variety of reasons. And so there's a way to achieve it in the short term, even if they lose the broader legal principle in the long run and are just generally combative. They think there's a lot of meta benefit for fighting these fights both politically and to some extent legally. You've already seen ways where picking issues over things like national injunctions or nationwide injunctions has led certain other courts to chill a little bit of their behavior voluntarily to avoid raising these questions the administration's willing to kick up, but kind of just more fundamentally, there's a little bit of an imbalance here. I think that they don't think there are a lot of policies that Democrats want to advance that would rely on tools like this. Because governments need bureaucracy. Our Democrats need bureaucracy to implement a lot of things they want to do and need to do. They don't really have a lot of people they're trying to kick out of the country, things like that. It's just a disproportionate view of the tools of government and the ways they can be used to advance the preferred agendas. That's not always going to be true. There are ways these are going to switch. I think you're right. In the long run, when you're talking about a long run of the arc of history, certainly, and maybe even the arc of history in our lifetimes, I think there's a reason why this is hugely damaging and problematic and should be considered that way by all Americans, no matter their ideological views. But in the immediate term, in terms of achieving policy goals of these two parties for the next five to 10 years. I think it's fair to say these tools are things that are much more valuable to Republicans than Democrats and probably can be used to achieve their agenda more effectively by Republicans and Democrats. I should say this particular part of the Republican Party, which is a unique corner of it, not the entirety of it. Does that sound right to you, Kevin and Tyler, I don't know if you guys have alternative thoughts or, Anna, if that strikes you as wrong in any regard.
- [28:52]
Tyler McBrien
No, I think the question that I've been thinking about extensively. Well, not extensively, that'd be a lie. But like Tyler, I've had on the back of my mind and eager to hear from Anna as our representative of what I love the Green Belt Bureau name. I think we should. Speaking of merch ideas, that's another one.
- [29:10]
Kevin Fraser
Everybody gets a GI and then a green belt. It's like my taekwondo lessons when I was a teenager.
- [29:16]
Tyler McBrien
Find a lot of belt merch. Right. Like that. That is a statement. And I did a quick Webster search on the definition of facilitate, and I've got a quote to help bring something about or to help make something easier. To me, that seems driven towards an end in terms of making something happen. Right. To help bring something about has some sort of proactive connotation to it. What's this debate about facilitate? It seems to me like facilitate is pretty easily interpretable. And I'm guessing if we had a lie detector system of the justices, they would have anticipated that facilitate had that same connotation. So what is the ongoing debate about what facilitating the return of Mr. Garcia actually means in practice? What's the administration arguing? What are we seeing his counsel argue?
- [30:11]
Kevin
Yeah, I mean, Kevin, you did exactly what Judge Sinis did, which was quote from the dictionary and those exact. That exact definition. So the administration's position that they've taken and that they continue to take, including in those discovery, this discovery dispute that I mentioned is that facilitate means that they just have to remove any barriers to entry that Abrego Garcia might face should he show up at a port of entry. And what the administration has said is that if he does show up at a port of entry or the American Embassy, they would immediately take him back into DHS custody and then they would deport him again, either by removing the withholding of removal that he currently has, that prohibits his removal to El Salvador, sending him back to El Salvador, or they would remove him to a third country. So, you know, that's the. The position that they've taken they've also gone a little bit further in that at one point Pam Bondi said that if he does show up at the embassy, they might provide a plane for him to return. So but they've ultimately just taken the view that we just have to remove any domestic barriers to his re entry. We don't really have to do anything more than that under the term facilitate because we've made it easier for him to return. And then they've also added that, you know, they think that it's all within the power of El Salvador to decide whether to actually release him and return him. Scott, is that your understanding of what the administration's position is?
- [32:02]
Kevin Fraser
It is. Although I think there's one other element that you really have to bring in here to understand what I think the Supreme Court is doing and the game it's playing with the administration and with the other party kind of stuck in between, unfortunately, in this case, which is that it didn't just say you have to facilitate the return, that the order can allow you to facilitate a return, they have to facilitate a return with due respect for the foreign affairs, foreign policy powers of the president, something like that. I'm paraphrasing the exact language, but with this reference to foreign policy and it's this kind of open ended language that I read the Trump administration since the Supreme Court's order here, essentially saying that is an exception that swallows the rule. If you are going to say we have to facilitate his return, but you also have to respect our foreign policy authority. Our foreign policy authority preempts anything beyond maybe removing these domestic barriers. Anything active. You can't direct us to do anything active. Is that an established legal parameters of what the limits of what a judge can do in regards to executive branch. No, it's not. They're coming back with this very bold assertive vision of the president's foreign policy equity, something that we've seen in lots of corners of what the Trump administration is doing to serve as this counterbalance. And it's kind of absurd when you read the sentence in the Supreme Court's opinion to say, oh, this exception they mentioned swallows the whole rule. It facilitated meaningless, more or less, because of this exception. Obviously the Supreme Court would be very unlikely to freeze something like that, if that's what it meant. But it's going to play this game and push the Supreme Court to clarify that and force it to say, no, this is or isn't within our foreign policy equity. And that's kind of actually what I think the Supreme Court expected To some degree, the way the court tends to approach these things, this is not just this court, this is a longstanding Supreme Court and kind of judicial posture is to push the branches towards accommodation on these sorts of things. In this case, you see a conflict between the judiciary and the executive branch, the lower court in this case and the executive branch primarily. And they're saying, okay, Mr. President, executive branch, you can't go this far, but you need to take some steps to help us. But we acknowledge you have this other authority over here, so why don't you come up with some compromise that we can avail, that moves in our direction, but doesn't go too far in regards to this foreign policy equity you have and come back to us on this. And most administrations most of the time say, okay, we'll avoid a conflict with the judiciary, but it still lets us define the parameters of our foreign policy authority. It allows us to preserve the elements of it that we think are most important. The Trump administration does not play that game. Again, they are just instinctively combative and maximalist. And so they are refusing to budge an inch on this. And that is why we're in this position where they may take this back up to the court. Again, they also may not. The one thing I will say about this administration is that they are as belligerent as you can possibly imagine until the moment they come completely roll over and cave. And I still fully expect that to be, in the end, what happens here, because I don't think they actually want to have a fight with the court about the scope of the four presidents foreign affairs powers, because I think they know they will lose. And it's useful for them to have this card in their back pocket to roll out. I fully anticipate this is my prediction I'll throw on the podcast that they will, at some point several weeks down the road, bring Mr. Abrego Garcia home, perhaps because he just happens to show up at the embassy and they just give him a plane. And then they will complain that the court's interventions and the court's actions actually interfered with the very delicate diplomacy that they were engaging in to try and facilitate his return or otherwise compromise foreign policy equities, because that's what they're already hinting at with their state secrets, declarations and all these other things. But in the end, they're not going to want to actually fight it out on the strain, but they know they have a procedural Runway that they can march down before they actually face consequences, and they're going to take as much of that Runway as they can.
- [35:38]
Kevin
I'm curious what folks think the spillover impact here is, though, in terms of the Supreme Court looking at the way that the administration has acted, even if it doesn't ultimately go back up to the Supreme Court, to what extent is there a point in which the Supreme Court people like Justice Roberts, people like Justice Amy Coney Barrett, who, you know, this is all kind of chipping away at the presumption of regularity that they might otherwise afford to the government. Any thoughts there from anyone?
- [36:17]
Tyler McBrien
I mean, for me, it's, it's telling when someone like Roger on, on your Great Greenbelt Bureau podcast from last week says something like, I'm just not sure if there will be a remedy in this case or if there is going to be any sort of accountability. And I think the more that we see this conversation boiled down into what I'll call silly lawyering over what's a facilitate mean? Right. If you walked up to a random Joe or Jane on the street and said what does it mean to facilitate? They'd give you X response, it would seem pretty commonsensical. The more we see matters of, you know, whether or not you're sent to a foreign country or not or whether or not you get to come home boil down to nitpicky lawyerly debates about what does facilitate mean. I think the questions about the rule of law generally start to become more widespread and folks begin to have more doubts in the judicial system and the larger governing process. When I talk to friends about what their kind of vibe is right now with respect to the administration and some of the cases they're hearing about, it is just that profound sense of uncertainty of I don't know what the law is in this case. Not that they were lawyerly to begin with, but just feeling like they're not sure what to expect. They don't know what's going to happen in any instance. That sort of unease, I think is really detrimental to people's willingness to trust institutions and to trust their elected officials. And so that's the scary part for me is just the more we have these sorts of cases occur where it's boiling down to did you check the Webster 2019 version or the Webster 2021 version? And that's the difference of whether or not you're going to be returned home. That's bad for the rule of law, in my opinion.
- [38:12]
Kevin Fraser
I tend to agree with that. But I will say one thing. If there's one thing that should give people a point of hope for institutionalists out there, in particular, it's the fact that this last vote regarding this flight due to leave Texas that the ACLU appealed all the way to the Supreme Court in an effort to stop it successfully. That opinion they issued was 7:2, meaning that the government lost all three Trump appointees and Chief Justice Roberts, Justice Alito and Justice Thomas were signing the government and they bought into primarily a procedural argument that essentially the remedy was too broad and was done with too much speed. Given that the government had already said they weren't going to remove the named plaintiff, but that there's dispute over the qualification of the class. Those arguments are a little ridiculous, I think for emergency action like this. They clearly are a little bit of dodges, but they were persuasive enough that the district court and the Fifth Circuit and Justice Alito and Justice Thomas bought into them. And I don't think it's impossible that other justices could have bought into them as well if they were trying to make a decision in that direction. Instead, they leaned the other way and said, well, in spite of these potential concerns, we're going to stop all of these flights for all of these people and we're going to hear some argument about it. That's actually an encouraging sign, I think, and I think it's a big warning shot to the Trump administration about where they actually stand with the Supreme Court right now and the fact that we're not seeing them pursue Abrego Garcia, these other cases up to the court. Instead, they're going to try and adjust and get on more favorable terrain and still fight it out, but they're not rushing to the court. That's I think, an indicator that they realize, at least in regard to this issue set, that the court is not going to there's a good chance it's not going to come down on their side in it and they need to put themselves on more favorable terrain if that's where they're going to go. May not apply in other contexts, although frankly, I think they have to be worried. There is bleed over to other contexts when you are making the sorts of aggressive and often borderline frivolous arguments that you're seeing in this context, which is not unique to this. We've seen it in the government destruction cases as well. I think that can bleed over and you can see that sort of irritation in other contexts as well. But right now, at least in regards to this, this particular Alien Enemies act context, it's a real warning shot and I think the administration is actually responding to it.
- [40:15]
Scott R. Andersen
When I was in college, I used to dream about starting my own magazine. A few decades later. I started this little site with two friends and Lawfare just turned into the magazine I always wanted to edit. It was quite literally a dream come true. The only thing more important than achieving a dream is protecting it. So protect your family by securing their future with life Insurance from policygenius policygenius makes finding and buying life insurance simple and ensures your family has a financial safety net they can use to cover debts and routine expenses, or even invest that money to earn interest over time. With policygenius, you can find life insurance policies that start at just $292 per year for a million dollars of coverage. Some options are 100% online and let you avoid unnecessary medical exams. On the Lawfare podcast we talk about risk and how to manage the risks associated with terrible things happening terrorist attacks, authoritarian takeovers, coups, cybercrimes. I have life insurance because it's a good form of financial planning. It's a good way to manage the risk of something bad happening to me to make sure my loved ones are cared for. That feels good. Policygenius combines digital tools with the expertise of real licensed agents. It lets you compare quotes from America's top insurers side by side for free. Their licensed support team helps you get what you need fast. They answer questions, handle paperwork and advocate for you throughout the process. PolicyGenius is the country's leading online insurance marketplace. Thousands of happy policygenius customers have left five star reviews on Google and trustpilot, so secure your families tomorrow so you have peace of mind today. Head to policygenius.com or click the link in the description to get your free life insurance quotes and see how much you could save. That's policygenius.com.
- [42:36]
Kevin
A real lemonade pet Insurance.
- [42:37]
Scott R. Andersen
Review by Madison H. You know, I.
- [42:39]
Madison H.
Thought it was a little ridiculous to get pet insurance, but I really didn't want to not take my little kitten to the vet because of money. In the last eight months I've taken him in six times because of ear infections and saved literally hundreds of dollars. He may even need to get surgery and I couldn't consider without Lemonade's help. I recommend lemonade to all my friends constantly and now I'm recommending it to you.
- [43:02]
Paige
Check it out@lemonade.com pet this is Paige.
- [43:07]
Anna Bauer
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.
- [44:06]
Kevin Fraser
What makes a great pair of glasses at Warby Parker? It's all the invisible extras without the extra cost. Their designer quality frames start at $95 including prescription lenses plus scratch resistant, smudge resistant and anti reflective coatings and UV protection and free adjustments for life. To find your next pair of glasses, sunglasses or contact lenses, or to find the Warby Parker store nearest you, head over to warbyparker.com that's warbyparker.com well, discussing certain high risk actions by the executive branch let us go to another set of high risk actions that have been potentially at least, that have been cruising a little bit under the radar over the last few weeks or months as we have all been distracted by the huge array of potentially illegal actions the Trump administration has been pursuing and legal actions that have followed as people have sought to litigate them. At the same time, we have seen a lot happening on the front of AI artificial intelligence in a lot of different domains. Of course, I think probably the last time we had you on the podcast, Kevin, we were talking about the Trump administration heralding their investment in major energy resources and other resources to try and build out and support the indigenous development of AI and particularly AGI artificial general intelligence capabilities here. That's still a big motivation, a big driver for this administration, as it was worth noting for the Biden administration as well to an extent, some might argue is a little bit myopic. And I may be one of those people, but that's a conversation for another topic. In this particular thing, we are also seeing the Trump administration really lean forward, more so than the Biden administration did, which also leaned forward in this direction towards taking AI and incorporating it into the government, into our decision processes, into how the government interacts with citizens and nationals. I will admit I am gradually becoming a bit of an AI convert in part because of lobbying by you and Alan. I have been using it more and more and it's far from perfect. I'm not worried about being replaced imminently, although maybe I should be more than I acknowledge. I will say I come up with better puns still reliably for the opening topic segments than it does, although I do ask every week now for like 30 or 40 of them to pick from and I've never used one actually verbatim from any AI platform that I've tried that on yet. But that said, it is really useful and does pretty amazing work at an amazing speed, but not unpossessed of errors and misunderstandings and miscalculations, particularly if not carefully cultivated and pruned and guided. So talk to us about what the Trump administration is doing with AI in government and what's maybe good about it and what might be a little alarming about it.
- [46:46]
Tyler McBrien
Yeah, so it's certainly been many moons since the Stargate project was announced, seemingly back in a decade of AI time I guess, when we're thinking back to January of this year. So most recently the big news out of the White House House was the promulgation of these OMB memos, commonly referred to as M memos. So this is M memo 2521 and MMO 2522. That's the last time you'll hear me use those numbers. But for those taking notes at home, you can give those a Google if you want to check them out in more detail. The upshot of these two memos in my opinion, is the transition from a sort of government experimentation with AI and an initial exploration of how its use cases may transform government services and systems, which we saw under the Biden administration to now what I'll refer to as government by AI. So really asking agencies, asking staffers to lean into AI, not only to experiment with it, but to actively look for new ways that they can make AI a component of their day to day functions and their agencies work. So this is a pretty big shift. We saw under the Biden administration. There were a lot more safeguards and intentionality with respect to paying attention when there may be civil liberty concerns with respect to the use of AI or privacy implications when it comes to the use of AI in the government. And while those carry over into Trump 2.0, these new M memos really put a sort of different orientation on just how extensively we may be leaning into AI when it comes to the delivery of Government services. So in particular, what I want to flag are a couple of the how questions of how is this actually going to change what the government does with respect to AI? A couple big ones to point out. Number one, folks may recall that under the Biden administration there was a mandate that agencies name a chief AI officer and that chief AI officer within each agency was kind of meant to be a hub for meaningful AI questions to help make sure that everyone was on the same page and to help guide the implementation of specific safeguards. For example, the implementation of the AI Bill of Rights that the Biden administration set forth relatively early in that administration. Now the chief AI officers under these new MMOs are AI champions. So their task isn't merely to kind of oversee AI and make sure that they're a resource for questions about AI, but to actively champion AI's integration into their agency's tasks. And so that's a pivot that deserves attention because now under these MMOs, agencies aren't merely encouraged to experiment with AI, but to actively track what the MMOs refer to as their AI maturation. So the administration wants to see just how extensively are you leaning into AI? We want to see what progress are you making not only with experimentation, but actual implementation into more and more tasks and actual implementation of more and more support sophisticated AI. So this isn't a sort of set it and forget it policy for AI of how are you going to use ChatGPT 4.1 or Gemini 2.5, but how are you going to continually integrate new and more advanced AI systems into your agency's tasks? So that's one pivot that's really important to pay attention to with respect to intra agency use of AI. Then there's this, this interagency transition that we're going to see under the MMOs. And that's the encouragement that agencies share their data, that agencies share their models, and that agencies share their code when it comes to using AI. And I just want to pause because anyone listening who has thought about data best practices and privacy best practices, the second you say the word check share should send up alarm bells and red flags and anything else. When we think about the government collection and use of data, traditionally since the 1970s and the Fair information principles, we have held fast to the idea that there should be data minimization. You're only collecting data for a specific purpose, you're only retaining it for as long as necessary, and you're only sharing it with those who definitely need to have access access to that information. If we're Seeing under these M memos that agencies are now going to be sharing data to help facilitate this AI maturation, that raises a lot of privacy questions. How are we going to make sure that those same principles are adhered to in this new era of government by AI? So that's one big question. When I've been chatting with folks who have served in various administrations, they commonly point out that different agencies have different norms and different levels of expertise when it comes to cybersecurity and when it comes to enforcing privacy laws. So if your information initially goes into the government via one agency, whether or not you want it going to another agency for AI training and AI execution is another question. So that's the second big thing to flag, is just this reusing of, of resources that we're going to see under the M memos. And then finally, there's a big emphasis on buying American, making sure that our acquisition processes for each of these agencies gives a preference to American AI companies and American AI tools. And so this aligns with a general reorientation of the administration to a what I'll refer to as a sort of America first, America only approach to AI. Whereas the Biden administration was perhaps more willing to work with our allies in procuring different models or securing compute, or securing the latest algorithms X, Y and Z instead. Now the real emphasis is how do we make sure that any AI system that's being procured or, or any AI input that's being procured is homegrown? And so that sends a bit of a conflicting signal because we're not necessarily the best at every aspect of AI development. We know that core parts of the AI stack come from our allies in Europe. So how we see this be effectuated by the agencies while also fulfilling their mandate for AI maturation is an open question that I'll certainly be monitoring. And finally, before I end this AI rant, I'll just flag that the big question here is public trust. So we've seen recently that reports, even before the Trump administration came into power concerns widespread concerns among the public about AI being used by the government, about AI being used by private companies. Nothing has really changed favorably to suggest that we're seeing the public become more trustworthy of companies and governments using AI to make critical decisions about what benefits they may receive or whether or not they're going to be promoted. And so if we don't see sufficient safeguards and steps to make sure that the public buys in to this increased use of AI, my grave concern is that we'll instead get A reaction response. People will see AI being misused in certain cases and they'll say, oh my gosh, this is the worst. I never want to have it be used again. Let's get rid of all the AI. And while I understand that temptation, it could really set us back in the long term. So thinking about AI, forecasting about extreme weather events, thinking about the potential of AI to not only identify whether you were wrongfully denied a certain, certain benefit, but proactively asking, hey, you could have applied for this Social Security benefit, but you missed out on it. Here's what you should go apply for it. Here are the specific steps. There are some really positive use cases of AI that I fear we may delay or even deny if we get this sort of reactionary pushback based off of a failure to secure that public trust sooner rather than later.
- [55:31]
Kevin Fraser
So I want to push you on part of this to tie it into how I hear the Trump administration, or at least certain people in the Trump administration, talk about this implementation of AI in government. I think particularly of Anna's favorite government acronym, doge, in this case, because a big justification or perhaps a big mitigating measure we hear quoted in the context of the dramatic cuts in federal government staffing and bureaucracy from people implementing it, particularly from the Doge corner and people kind of backing the Doge corner is that artificial intelligence is going to do a lot more of this. When we hear people at, I believe it was opm, talk about an Apple Store type experience where you will go and engage and you'll have kind of one stop shopping for retirement benefits. I think the specific conversation is relating to but other government services and interacts with the government as well. Part of that, and you don't have to dig too far beneath these comments to see this coming up time and time again, is automation is the use of AI combined with kind of software platforms to fill in a lot of gaps with this. And if you are a technologist, if you're somebody who admires Elon Musk, admires a lot of the people backing some of the stuff in the administration, you might be inclined to buy into that because you will say AI can replace a lot of people. It can do a lot of things people do in terms of thinking. But I have trouble squaring that circle. And I want to hear from you as somebody who thinks a lot more about this. What does the government need to use AI effectively? Because what I find concerning is that you have generalized AI systems that need to be taught how to do certain things and basically quality checked, at least when implementation when being developed, particularly in the early stages, because you are training these models to get to the right outcomes reliably. And that does require real people who understand what the desirable outcomes are and how you should get there. And then you need data. And that is one of the things we're seeing cut most aggressively by Doge and these other agencies are government efforts to collect broad swaths of data and make it publicly available or even to collect it just for the government's use. Both of those are being cut dramatically for everything from health and education outcomes comes to weather events. So are those two things compatible? Is what's happening with the shrinking of government actually compatible with broad implementation of AI towards these outcomes at these early stages or with the models we have? Because to me, I just have trouble seeing the ends meet.
- [57:54]
Tyler McBrien
Yeah. So just focusing on government shrinking with respect to shrinking its data footprint, that is directly opposed to a functioning quality AI system. Right. We know that quality data is, if not the key input for an AI system, among the most important. If you don't have quality data, you're going to get bad outcomes. The too often repeated term is garbage in, garbage out. Right. If you train a model on too sparse of information or unrepresentative data, let's say you only trained on information from California. Right. Or only information from New York residents, they're not going to get the sort of representative outputs you're hoping for for administering an entire government. And so this act of actually not collecting information is going to make it a lot harder for AI to be used effectively at the federal level. So in that sense, they're directly opposed those. Those missions. And that's why I also want to flag that there's been a push by the Biden administration and now by the Trump Trump administration, emphasizing the importance of AI talent. Well, one thing that's directly opposed to making sure the federal government has sufficient AI talent is some of the immigration policies that have been bandied about with respect to are we going to recruit and retain AI experts from abroad. That's a big question we need to be thinking about as well, is do we have folks in the federal government who have the expertise to develop, develop and deploy these systems. And if we're shortchanging our ability to recruit and retain those people, that's another action that may cut against this larger ambition of AI dominance or simply AI maturation in the delivery of government services.
- [59:41]
Paige
I have one question that I don't know if you can answer is whether or not President Trump has used ChatGPT and if so, what happened and what the prompts were.
- [59:50]
Kevin Fraser
How does it respond to all caps? We did recently learn that it's worth tens of millions of dollars to say please and thank you to search engines, at leave according to OpenAI, as I understand it. So what happens when you just scream at it in all caps?
- [60:03]
Tyler McBrien
Don't be nice to your AI. Don't anthropomorphize it. Right. It's just a tool. It's a hammer with some greater outputs. I don't know if the president's used ChatGPT. I can tell you I've heard from clerks and a couple friends that judges increasingly are consulting ChatGPT. So something, something to keep an eye out there for. And then we've seen on a couple of occasions the appearance that several folks in the administration, based off of their first drafts of a couple of orders and different memos and things like that, certainly ChatGPT is making its rounds in the administration. Whether or not we've had a AI generation generated tweet from the President, I don't know, but I'm sure it'll be coming at some point.
- [60:52]
Paige
And then I guess my broader question is just to what end? You know, as you've mentioned, it's a tool, it's a means to an end. And I think for an administration that doesn't often articulate what the ends are, what the goal is, what the vision is, then the adoption of AI is just going to fall victim to a lot of early tech adoption, which is just rapid use without much intention or thought given to why you're using it or how you're using it. I mean, like, just think of doge, you know, government efficiency. Efficiency is goal dependent. You know, you can't really just have efficiency in and of itself. It has to be, you know, it's more efficient toward what end. And I feel like I'm getting that vibe of from the administration. I'd also push back a little bit. I wouldn't worry too much about public trust and skepticism of AI, because I feel like these days trust falls along partisan lines or they're attached to people and figures rather than actual topics. So if the Trump administration is an AI booster, then I think it becomes another marker of the MAGA movement and skepticism in tech companies will be more of a democratic issue and unrestrained AI development and AI for these in the military and government in all ways will be more of a hallmark of a MAGA policy.
- [62:17]
Tyler McBrien
Well, so just to start, I'll push back on your pushback which is. That sounds problematic to me. If we have, for example, Republicans trusting AI use by the government and then Democrats being opposed to it, if we're unable to make that flip flop back, or if we just keep going back and forth of who trusts whose AI system, I don't think that's, that's necessarily beneficial for the long, long term uses of AI in terms of improving government services. To your first point on what's the purpose, I think this is my gravest concern as well is if we just say efficiency is the purpose and we're just trying to slash things for the sake of slashing things, then that's necessarily going to make folks opposed to the greater use of AI.
- [63:05]
Kevin Fraser
Right.
- [63:05]
Tyler McBrien
If they find out that they can't access this website or they've seen that this department no longer has anyone they can talk to, or if they've seen in a department entirely disappear, well, then AI and efficiency is something that folks are going to rally against, I'd presume. I think a healthier approach and the approach that I hope we begin to lean into more is effectiveness. If we could talk about effective uses of AI to improve your experience at the DMV or to improve your experience filing your taxes as we've talked about, to make those experiences more effective, I think AI can be a drastic improvement over the status quo. And what I hope folks use as sort of a frame of when do we want to see AI be used and when may we want to instead rely on more analog systems is kind of a compared to what? Analysis, which is a framing I don't think we always use. But for example, if you want to have the Social Security Administration rely solely on humans to determine contestations of eligibility, we know that's going to take months if not years to have some of those determinations. So a compared to what analysis says, hey, that might actually be a good use case in certain instances for that initial determination at least to be made by AI. And that's where we could see effectiveness start to become a priority. Identifying where are these attributes, where we know AI is less prone to hallucination, where we have good data that we can really improve the relationship between the public and the government. Government. Those are the instances I think we should prioritize rather than just saying hey, any agency, look at how you can use AI, just go for it and let's hope for the best. That's not necessarily the strategic, effective, driven mentality I think would be most beneficial.
- [65:04]
Kevin
Can I just add too on your point about the trust point and How DOGE is maybe impacting perceptions. You know, I like there's all this reporting about how DOGE is using or maybe using AI, but it's also actually found its way into some of these legal cases. I was just looking at the case, the American Federation of Labor vs Department of Labor case, which there was just a preliminary injunction filed not too long ago in that case with lots of exhibits. One of the exhibits included a declaration from the general counsel for the American Federation of Teachers. And in that declaration, he says, you know, introducing this is one of the cases over access to federal government systems. And he says, like, you know, introducing these sensitive personal databases into artificial intelligence, as DOGE has done in other government systems, enhances the risks of doxing, identity theft, invasion of personal privacy, all this stuff. These concerns have come up, even if not totally explicitly. There's like, kind of AI concerns that have been kind of percolating in some of these cases that are over the access to systems. And, and I think that we're going to see more and more of that as we get into discovery, and some of these plaintiffs might learn more about what exactly it is that DOGE is doing. AI related. So I certainly see your concern that, you know, the DOGE activities are not only in the public reporting around. It has started to concern people, but it's having a real impact on some of these legal cases, or at least it seems to be.
- [66:55]
Tyler McBrien
Yeah, no, I think the DOGE use cases are obviously going to be the ones that grab the most attention. And, and seeing that there have been such an utter lack of transparency around what data are they using, how are they accessing it? Who are these individuals actually feeding the data into AI? All of those questions. The more uncertainty there is, I think the harder it's going to be for folks to come around and say, oh, no, there are positive use cases of AI by the government, and I support that. Folks are going to really prioritize and kind of be anchored in those doze examples. And so that's a concern.
- [67:36]
Kevin Fraser
All right. Well, speaking of efficiency in government, let us go to what may prove to be a notable counterpoint of note. We have seen the last 48 or 72 hours be particularly unkind to our already beleaguered Secretary of Defense, Pete Hegseth. Just a few weeks ago, we were all in a tizzy, rightly or wrongly, I tend to think rightly about the fact that he chose to use a signal conversation with several Cabinet officials to share details, almost certainly classified details, about a series of military strikes happening against Houthi forces in Yemen. But now it seems we have reporting and I have no idea what the sourcing is, but it's pretty amazing and I really, really want to know that he's in fact shared many of the same details with his brother, his wife and his personal lawyer on a separate signal thread. No mention of anyone else other than those three. So I guess one of them is the source. I don't really know, but if I were Pete, I would be very nervous these days, both at home and in my legal affairs. By the way, that does not work for privilege if that's what you're trying to pull off, Pete, so sorry. Hopefully your personal lawyer informed you as much before you went about this path of action. Then on top of that, just yesterday we saw, I think, what is actually the rare truly notable op ed be published in Politico by John Oliott. I apologies if I'm mispronouncing that a person who was until recently a spokesperson at the Department of Defense released a few weeks ago or resigned, I think is a little actually unclear about that or exactly the conditions under which he left. But essentially saying that while he was a very vocal booster of Hegseth, in fact the last op ed he wrote for Politico was endorsing Hegseth as Secretary of Defense. He said that it had been a month from hell at the Defense Department because of the absolute chaos and infighting that Hegset that has kicked off, not least in part as a response to that initial signal controversy, initiating a witch hunt for leakers and other people in the Defense Department that led him to let go a number of people and has been a source of great frustration for people in the department. Now we have additional stories just in the last few hours. We're recording this on Tuesday, April 22, noting that other sources in the media are confirming that Hegseth's tenure in the Defense Department of late in particular has been very chaotic and with a number of people saying that he may implode on his own. I am quoting that directly from one of these unnamed sources in coverage, I believe from Politico or npr. I can't remember which piece that was from saying he may implode on his own, even if Trump continues to back him because it is so chaotic and unhinged in the Defense Department. Not a great source of confidence for anyone who believes in Pete Hegset or anyone who lies on the Defense Department as we all do. That said, no signs of budging yet from the White House at the Easter Egg hunt. The corporate sponsored very awkward Easter egg hunt the White House sponsored this past weekend. President Trump came out strongly in support of Hegseth. Hegseth himself was there was very vocal and heated in blaming the media and Oliott as sparkling up the media around what he said was a non event of a story. Tyler, let me come to you on this one first. What do you make of this whole series of events? I mean, these are bad reports and I should note, like in my experience as a government employee and government watcher for a long time, I've seen a lot of bad media reports. I've occasionally had inside perspectives on media reports confirming that they were as bad or not as bad or maybe worse than as reported. But you've very rarely seen anything this really exceptional. And Oliott's op ed, beyond pulling no punches, seemed so exaggerated to the point that it really does read like you have a beef. He's very careful to couch it in terms of, of like, oh, I love Pete Hegseth. I still love him to this day. I respect the man, but God, he's an awful Secretary of Defense. But then to have a number of people apparently backing up with maybe even stronger rhetoric in this reporting who are still in the Defense Department, at least according to NPR and Politico, I have no reason to not believe them on that. In terms of their confidential sources, it's pretty exceptional. I don't think I've ever really seen something like this since it may be the first Trump administration and some of the officials there. What do you make of it? And is it going to make a difference? Is this going to be the straw that breaks the camel's back? Or is Hegseth's deep, deep base in kind of mega country, particularly the alt right media, just too strong to shake him loose?
- [71:48]
Paige
I keep thinking about past Trump ousters and I feel like it often follows what Hemingway says about bankruptcy, slowly at first and then all of a sudden. So I think that may be happening with Hegseth. If the Politico op ed had come out on its own, I think this is survivable. They're pushing the line that these are disgruntled employees. That is they can't be trusted because they have an axe to grind. As you mentioned, the Politico op ed was very strong. But that coupled with the 12 punch of the Signalgate Part 2. And I want to also include a few details from the New York Times reporting that were really bad. It just kind of gets worse and worse. Unlike the first signal Chat the. The PC small group that was reported in the Atlantic. This signal chat was reportedly set up by Hegseth himself, and it was started in January before his confirmation as Defense Secretary. It included, as you mentioned, his wife and his personal attorney, as well as about a dozen other people from his personal and professional inner circle. And it seems like he was just doing a copy and paste job of these plans. Again, I have no idea why. I. I think. I wonder if it was almost like he was showing off or. I really can't tell. I don't know why he has to show off to his wife and his personal lawyer, but it just, like you said, it gets worse and worse and worse, and I think it just completely reveals Hegseth to be a total amateur. I mean, there were hints of this, first of all by his cv, but also by his rhetoric about what makes a good Defense Department, with his braggadocious emphasis on lethality and the war fighter, when I suspect that what makes military successful are very unsexy things like logistics, like security, like contingency plans, like risk mitigation. These are the things I would want a Secretary of Defense to be touting rather than just lethality and, you know, going in guns blazing. So I think even in Trumpland, loyalty and fealty can only get you so far, because ultimately, I believe Trump sees people under him as disposable. And once you use up all your usefulness or you become more of a liability than an asset, then you know, it can happen slowly, and then all of a sudden, Trump will drop you. So I wouldn't be surprised if pretty soon we see Hexath on the outs of the MAGA world.
- [74:14]
Kevin Fraser
Anna, what do you think? You're a close observer of this particular set of the media. Are you? Right? Can one only defy gravity so much before, like Icarus, your wings melt, you go plunging into the ocean? Mediterranean, I think it must have been, from my rough sense of geography and the Icarus tail. Or are we underestimating just how resilient people like Pete Hegseth are with their level of support?
- [74:38]
Kevin
Scott, look, on one hand, I think that ultimately what this comes down to is what Trump wants to do. Obviously, he's a guy who doesn't really seem to have much concern with what people do with classified information. The White House has said that Trump is standing behind hag Seth, all of those things. But what I do know about Trump is that. That he's a guy who does not like bad press. If something is getting enough bad press and he sees it He, I think, ultimately is going to say goodbye to Pete Hegseth. And I think that, as the reporting indicates, the White House may very well already be on the hunt for a new defense secretary candidate. So it may well be that until that candidate is identified, they're going to continue standing behind Hegseth. And it's not until, you know, the moment that they have someone who they could announce as a replacement that they'll actually pull the trigger on that. But I also will say, at this point, I'm feeling a little bit like this is a Liz Truss lettuce situation. And my question is just, you know, who goes first, the Lettuce or Hegseth? If anyone has thoughts on that, then I'd appreciate it.
- [76:07]
Kevin Fraser
I.
- [76:07]
Kevin
Maybe we can do a lawfare betting pool on exactly how much longer Hegseth lasts. But my other question more seriously is, you know, as Tyler mentioned, one of the differences in this new reporting about Signal Gate. The previous signal message thread that Hegseth shared this information to was with, you know, top national security officials, who presumably all have security clearance. You know, there's the questions, though, around whether, of course, you know, whether Hegseth should have shared it via an unsecured mechanism, all of those things. But there was at least something that differentiated that previous Signal Gate chat in that it was people who, you know, all had reason to have this information. Whereas, as Tyler mentioned, like, why are you sending presumably classified war attack plans to your personal attorney and your brother and your wife? And so all of that kind of raises a question that, Scott, I particularly have you in mind. But if anyone else has thoughts. Thoughts. You know, let's say that Hegseth does get the ax and is ousted. Assuming that there's no pardon on the table and that the statute of limitations extends beyond the Trump administration, is there potential criminal exposure risk here for Mr. Pete Hegseth?
- [77:39]
Kevin Fraser
I would never assume a pardon is off the table. I'm assuming most people from this administration will get.
- [77:43]
Kevin
No, I'm saying assuming for this sake of argument, not assuming that a pardon is off the table. I think we have to assume a pardon is on the table, but assuming in a hypothetical world that for whatever reason, Hegseth does not receive a pardon of some sort.
- [78:02]
Kevin Fraser
I mean, this is the sort of thing that you see more junior officials do get prosecuted for under the Espionage Act. I mean, a little different context, but, like, you take home classified or just sensitive. It doesn't even technically have to be classified under the Espionage Act. Documents to an insecure environment. You take them Home to your home office and you leave them there, you take them to a coffee shop. At a minimum, it has career ramifications. There have been cases where those have been the basis for criminal prosecution in a handful of cases. So it's really possible. Is it likely? No, it's not. Even if we're an under different administration, I don't think this is the sort of thing you would likely get prosecuted. And I stand by the idea that we are going to see plenty of pardons at the end of this administration before Donald Trump leaves the White House. So I'm not particularly worried about that. The one thing I'll say is I do think Mr. Hegseth is probably on the outs. I do think you can only defy gravity so long, but I'm not sure exactly what that looks like. Is that a full resignation, Is it certainly not a firing? I highly doubt it. They'll certainly try and get him to resign.
- [78:58]
Tyler McBrien
You got to name a perishable. Good.
- [79:00]
Kevin Fraser
Well, I'm getting to that. I'm getting to that. But you know, I actually. Well, I'll get to that in a second. I will just say I think we'll see. Mr. Hegseth perhaps stay as Secretary of Defense a little bit longer, but more duties go to Steven Feinberg, his deputy, a reasonably competent and low profile man. Perhaps for a little while. That's not gonna be too sustainable. Maybe eventually he moves on. He decides he has to go back to his charity, spend more time with his family. Maybe he gets nominated to a nice ambassador post somewhere or gets moved into the White House for some advisory role. There's a lot of face saving motions, I will say, and this administration loves to save face. So I don't think it'll be quite as clean a separation as we might hope or as timely of one. But I do tend to believe is on the outs. The question is, what is the right produce? As Kevin has already anticipated, I did what we should all be doing for all our questions these days. I consulted artificial intelligence and asked them give me 30 types of produce that rhyme with Pete Hegseth. Turns out there are not 30. Even AI was stumped by that one. But the one I got that I thought was particularly apartment Is leaks, Hegseth, for multiple reasons. So I think I'm going to purchase a bundle of leaks at the market today, put it on not my counter, but the lawfare counter, because I value the cleanliness of my home and we'll see how it goes. See who outlasts who.
- [80:11]
Paige
What comes first. Will we Get a new Pope first or a new U.S. secretary of Defense first.
- [80:15]
Kevin Fraser
Will we see smoke rise from. From the Vatican or from the Pentagon across. Across the Potomac River? That is the real question. Fair question. Fair question.
- [80:24]
Kevin
I would like to know if there's ever been a Secretary of Defense who's been demoted to Pentagon spokesperson. Because as I've said all along, I do think Pete Hegseth probably just should have been the spokesperson instead of the actual Secretary of Defense.
- [80:42]
Kevin Fraser
And you know, certainly with John Oliott's departure, there is an opening available, so perhaps that is the move.
- [80:49]
Tyler McBrien
I'm curious though, is this the last chat we'll learn about? Because I'll go with the hot take. I'm gonna, I'm gonna give him a banana's worth of time because I think that some other conversation or some other act of carelessness is just ripe for. Pun intended is just ripe for coming out. This can't be the. If you're CC in your wife on massive decisions, there's got to be more. This has to be the smoking banana.
- [81:18]
Kevin
I agree. And I'm going to go with something related to the Panama Canal. Maybe that's my guess.
- [81:27]
Kevin Fraser
Avocados. Avocados. Coming across that Panama Canal does those of us on the the East Coast. Well, folks, we will have to wait and see. But for now, we are out of time for this week's episode of Rational Security. But of course, this would not be Rational Security if we did not leave you with some object lessons to ponder over in the week to come. Tyler, what do you have for us today?
- [81:45]
Paige
As some of you know, I just returned from another bicycle tour in Turkey. So I've had a one track mind lately.
- [81:52]
Kevin Fraser
So jealous. This would be my top of all your bicycle tours. Actually you did one through the Balkans that was also very cool. This is like this one and that one are like a close tie. But I'm very jealous of both of these trips. Two of my favorite places this object.
- [82:03]
Paige
Lesson may be for you, Scott, because if anyone likes a little like wanderlusty distraction, there's an amazing website called bikepacking.com where they have a lot of amazing just advice and gear list to get into this kind of these kinds of trips. But they have a map of routes that they've mapped out all over the world and they have incredible photography. So it's fun to just kind of go on their map and fantasize about these trips. But I will say to some people these trips sound like the worst thing in the entire world and the last thing they'd ever do on vacation. So I also see that point of view.
- [82:36]
Kevin Fraser
I think I sound amazing. I'm more of a hiker than a biker myself, although I do bike to work and around town. But I would make an exception. It's worth it to get the landscape behind you for these sorts of environments. That sounds amazing. Annaba, how about you? What do you have for object lesson this week?
- [82:50]
Kevin
Yeah, okay, so I have this really deranged thing that I do where whenever I'm anxious about current events or, or whatever, I will watch an episode or movie of the thing that kind of expresses the worst case scenario. So like on election night, I watched the succession episode from the final season that's about the like burning of the ballots in Michigan or whatever it was, or Wisconsin on inauguration day. I like watched the movie Civil War. Like, I just, I don't know what it is. I just do this thing that like, kind of I watch the thing that is the closest to the thing that I'm anxious about. And so recently with the tariffs, I watched the Big Short and I haven't seen that movie in so long and it just reminded me of what a fantastic movie it is. So if you're anxious about tariffs and you want to find a really weird way to cope with it, obviously very different financial situation, but also kind of hits close to home is the Big Short. Someone made a joke on. I was joking on Blue sky about this and I was like, oh, wonder if they'll make a sequel one day. And someone was like, yeah, they'll call it the Big Stupid. So I thought that was really funny. But it was a nice rewatch. I really enjoyed it.
- [84:16]
Kevin Fraser
We talked about this just a few weeks ago with Quinta Jurassic, who slandered the Big Short in favor of another financial crisis movie that I'm blanking the name of. I also like the Big Short. I hadn't seen the other one, but it's a good movie.
- [84:28]
Kevin
No, I'm so sorry. I hate to repeat an object lesson. I missed that.
- [84:32]
Kevin Fraser
Well, I think you're correcting the object lesson by coming to the Big Shorts defense.
- [84:36]
Kevin
Was it Margin Call?
- [84:38]
Kevin Fraser
Was Margin Call, yes.
- [84:39]
Kevin
Yeah, Margin Call was going to be my backup if I didn't have Big Short, but yeah, it's a good one too.
- [84:47]
Kevin Fraser
Absolutely. Well, and of course, Michael Lewis is the author of the new book coming out, may already be out with another number of vignettes about government employees and their significance. And prior to that, the Fifth Risk, which gets into the risks of government and lack of deregulation so we may see a very apt movie of another of his books coming out soon from Mr. Lewis. He is always on top of it and an interesting read. Well, accent. Well, I'm glad you came to that defense, if nothing else. For my object lesson, I will also turn to my video shelves, which. Which don't really have videos or DVDs on them anymore or don't really exist. But I was on vacation last two weeks, more or less off and on, and finally got to sit and watch tv, which is something I don't get to do that often these days with two very rambunctious children who do not sleep. And I finally watched Severance. I have to say, Severance is amazing and is an awesome show. It may be my absolute favorite show on tv, which is saying a lot because there are some great shows I really love. It is the first show. I tried to watch it back during the pandemic, I think when the first season first came out and it was like, like just I wasn't in the headspace and I didn't get into it. And I sat down and tried it again at my wife's urging. And I have to say, it is the perfect blend of creepy and weird and mysterious and charming and a little sentimental and sweet and a little goofy and funny. It is the closest thing I have found to date to the first season and a half of Twin Peaks. If anybody's a Twin Peaks freak, that is like my absolute favorite television and the thing that is my touchstone. And it's amazing. I like devour the entire series. We watched it every night until one in the morning trying to get through it. It is really, really, really good. So highly recommend that, particularly if you have ever been a Twin Peaks fan. And with that, Kevin, let me bring it to you to bring us home. What do you have for your object lesson this week?
- [86:28]
Tyler McBrien
Yeah, I mean, I gotta meet Scott's innie at some point. I'm curious what the.
- [86:32]
Kevin Fraser
You're looking at him, man. My Audi is way more relaxed.
- [86:35]
Tyler McBrien
Only the innie. Only the innie. So my object lesson, it's a little bit of a throwback. I wanted to call attention to the Austin Community foundation and google.org partnering up to fund AI training for 20 local nonprofits through Google's AI Opportunity Fund. Would love to see way more labs doing this sort of work, which is asking how are we actually going to make sure that nonprofits, small businesses, high schoolers, community colleges have access to AI and can really lean into it. So kudos to google.org, kudos to the Austin Community foundation for leaning into AI. Quick history lesson. I promise it won't be long. It took 40 odd years to electrify rural America. We should not see coastal America just become the land of AI, but need to make sure that folks in the flyover states quote unquote receive the same access to AI as everyone else. So really cool to see that this is happening on the ground in some communities and would just say we should see a heck of a lot more of this, rather than coming up with Ghibli memes or thanking AI for its service, but focusing on what it can actually do to help folks out.
- [87:52]
Kevin Fraser
Well, second that. Absolutely. And that brings us to the end of this week's episode. Rational Skill Security is of course a production of Lawfare, so be sure to Visit us@lawfaremedia.org for our show page with links to past episodes, for unwritten work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series including Escalation, now out in full in a podcatcher near you. In addition, be sure to follow LawFair on social media wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of lawfair on Patreon for an ad free version of this podcast and other special benefits. For more information, visit lawfairmedia.org support our audio engineer and producer this week was Noam Osband of Goat Rodeo and our music, as always, was performed by Sophia Yan. We are once again edited by the wonderful Jen Patcha. On behalf of my guests Anna, Tyler and Kevin, I am Scott R. Andersen and we will talk to you next week. Until then, goodbye.
- [88:51]
Anna Bauer
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 Ubereats. You can get grocery alcohol everyday essentials in addition to restaurants and food you love. So in other words, get almost anything with Ubereats. Order now for alcohol you must be legal drinking age. Please enjoy responsibly. Product availability varies by region. See app for details.