Loading summary
Transcript87 lines
- [00:01]
Scott R. Anderson
The Electronic Communications Privacy act turns 40 this year and it's showing its age on Friday, March 6, Lawfare and Georgetown Law are bringing together leading scholars, practitioners and former government officials for installing updates to ecpa, a half day event on what's broken with the statute and how to fix it. The event is free and open to the public in person and online. Visit lawfaremedia.org ecpaevent that's lawfairmedia.org ecpaevent for details and to register.
- [00:37]
Advertisement Voice
That new thing yeah, we've got it. The Drop by GNC bringing you all the newness that matters. Hand picked by the pros who actually know what's up and what's proven to work. We keep you on top of the trends and dialed into what's next. Whether you're crushing it at the gym, leveling up your game or thriving every day, the Drop by GNC is where the latest solutions in health and wellness first non stop innovation and fresh finds daily. Explore what's new and what's next on the drop by GNC why choose a
- [01:07]
Sleep Number Smart Bed? Can I make my site softer?
- [01:09]
Scott R. Anderson
Can I make my site firmer?
- [01:11]
Tyler McBrien
Can we sleep cooler?
- [01:13]
Advertisement Voice
Sleep number does that cools up to eight times faster and lets you choose your ideal comfort on either side your sleep number setting. Enjoy personalized comfort for better sleep night after night. And now during our President's day sale, take 50% off our limited edition bed plus an extra $100 off all mat mattresses. End Saturday only at a sleep number store or sleepnumber.com.
- [01:39]
Scott R. Anderson
So Tyler, you and I have something in common in that we have become train denizens of the last few days. I've spent more time in train stations than I spent on actual trains over the last 48 hours due to a lovely trip to Charlottesville, although the means of getting to and from were not as lovely. But I think you had even worse luck than I have lately, haven't you?
- [01:59]
Tyler McBrien
Well, I mean, first of all, we're just lucky to be in a country that values public transportation so much that we have just stellar facilities everywhere we go. But actually no, I shouldn't complain because I did this morning on my way in to dc, I left from New York Penn Station, Moynihan Train hall, which is new. It's very fancy and fancy lack of seating of course, but I had H and H bagels which is my go to. I usually get H and H bagels, an everything bagel with lox spread which is the working man's lox. But it was delicious. Sorry if I have any, like, poppy seeds in my mouth or my teeth.
- [02:31]
Scott R. Anderson
I love the old school train station. The Charlottesville train station was my favorite because you don't even catch the train inside. You literally walk out through a fence door and just try and catch up on the outside. I'm like half expecting to have to run a little bit to catch it while it's still moving. It's got that sort of vibe they give you a long Runway to be able to get to it. But yeah, it's like the amenities are slightly more limited. A couple restaurants nearby, luckily. But Union Station, where I got stuck at for like three hours on Monday night, I guess it was, has like all sorts of stuff now. They've got like a hip new record station and used bookstore that I pillage. And that's actually gonna be my object lesson this week. Like, I feel like they've really upped their game in terms of activities for the snowed in crowd, which I appreciate, but at the cost of any place to sit down, it seems, because they just haven't gotten rid of all their chairs.
- [03:15]
Molly Roberts
I recently saw a tweet from some MAGA type actually saying it is a thank you to President Trump for the better Union Station. So I think the lack of seating, it's a trend in the train stations having to do, driving out the people who would, I guess, make it what this guy would have said was the worst. Union Station. But I don't think Trump is directly to thank for the record job.
- [03:37]
Scott R. Anderson
Well, fair enough. I think the Transportation Department did actually take over Union Station. I can't remember that happened under Trump or under Biden, but in the last year or two through some sort of arrangement. So there may be some federal debt to be owed, but, you know, he cannot claim that he made the trains run on time. That is something that not even Trump can get to on this one. Hello, everyone, and welcome back to Rational Security, the show where we invite you to join members of the Lawfare team as we try to make sense of the week's big national security news stories. I'm thrilled to be joined by a few of my colleagues, a few regular appearances, and an old friend who's not been on the podcast in a while. I'll start with the old friend, and that is, of course, Professor Paul Stephan of the University of Virginia School of Law. At least once. I think we've had you on twice now, if I recall correctly, on the podcast. But it's been a little while. So we're excited to have you back on. Paul, thanks for joining us.
- [04:27]
Paul Stephan
Delighted to be here.
- [04:29]
Scott R. Anderson
You were kind enough to host me in Charlottesville and you didn't realize that involved being dragooned in person and guilted to come back on our podcast in a way that's much harder to reject than an email or text. So thank you for humoring me in that regard.
- [04:40]
Paul Stephan
I'm always proud to hang out with the cool kids.
- [04:44]
Scott R. Anderson
And joining us in the cool kids alley here in the back of the bus is none other than Molly Roberts, who has gone from one of our new appearances to somebody I've dragooned multiple times in a row. An elite cadre, and now a straight on regular. And of course I should mention senior editor here at Lawfare. Molly, thank you for coming back on the podcast.
- [05:01]
Molly Roberts
Thank you for having me and calling me a cool kid.
- [05:03]
Scott R. Anderson
There you go. That's all any of us want, isn't it? And Tyler, you are cool enough that you probably don't need that sort of affirmation. I'll give it to you. Anyway, we are also thrilled to have Tyler McBrien, law firm's managing editor, joining us back on national security as well. Tyler, thanks for joining us and for making your way down on the Northeast. What a northeast regional line to get here on time. We just squeezed you in and got you in in time to record. So we're excited to have you here both in town and on our podcast.
- [05:32]
Tyler McBrien
Thanks for having me. Yeah, for the listeners who can't see me, I am very nonchalantly smoking a cigarette in a very cool way as
- [05:38]
Scott R. Anderson
we record on a moped in a beret. That's exactly right. Well, let us get into the news. It has been a busy few days, as they are all these days. We've got a couple of big stories to talk about. Topic one for this week, Textual Healing. On Friday, a 6:3 Supreme Court majority brought an end to at least the current iteration of President Trump's controversial tariff policies, ruling that language in the International Emergency Economic Powers act, or iepa, authorizing the regulation of importation doesn't include the authority to impose tariffs. That said, President Trump himself has already indicated that he intends to reinstate many of the tariffs he had installed using IPA under other statutory authorities. How big a setback is this actually for the Trump administration's trade policies? And what might it mean for other aspects of his policy agenda? Topic 2 Mayhem in Mexico. Over the weekend, an elite unit of the Mexican army killed one of the country's most powerful drug kingpins, Nemesio Oseguera Cervantes, also known as El Mencho. His syndicate, the Jalisco New Generation Cartel, immediately retaliated through attacks on Mexican security forces, roadblocks throughout the country and other measures intended to terrorize the public, particularly in areas where frankly, they get a lot of tourism and particularly a lot of American and Western tourists. The decision to move against El Mencho followed an intense pressure campaign by the Trump administration which has pushed Mexican President Claudia Sheinbaum to take a hard, hard stand against the cartels. Should this be seen as a win for the Trump administration or for Sheinbaum? And what could the long term implications be for the US Mexico relationship? Topic 3 Clap if you believe On Tuesday, President Trump delivered his annual State of the Union address, the longest of its kind. Many had braced for a contentious speech, expecting Trump to ridicule the justices seated in front of him and potentially even announce strikes on Iran. But instead, Trump appeared to pull his punches on both of those fronts. He instead saved his harshest words for congressional Democrats and focused on laying out a rose colored picture of the state of the country and a fearful dark image of many of the threats to it. How effective was Trump's speech and what does it tell us about the current state of his second presidency? So for our first topic, I want to dig deep into learning resources. This is of course Supreme Court's decision on Friday about President Trump's tariffs agenda. Paul, you were generous enough to write about this case for us, I think several times, most recently just in the past few days here on Lawfare talking about the decision. We of course ended up with a 63 decision coming out. Chief Justice Roberts, Justice Barrett and Justice Gorsuch joining the three Democratic appointees, Justice Kagan, Justice Ketanji, Brown, Jackson, Justice Sotomayor in saying essentially AIPA does not authorize any sort of tariffs, not just the global tariffs that were being applied, reciprocal tariffs that were being applied to all countries, but also the country specific tariffs related to narcotics trafficking and certain other specific policy issues that have been challenged in relation to China, Canada and Mexico. Talk to us about what surprised you about the Court's decision on this, what didn't surprise you and kind of what struck you as the most notable aspect we should be tracking about this opinion, where the Court came out?
- [08:34]
Paul Stephan
Well, I expected if they were going to strike down the tariffs that we'd see exactly the alignment that we saw. That just seemed manifest from the oral argument. What's interesting is Gorsuch's investment in extra explaining with an opinion that's not quite Twice as long as the Chief Justice's Court opinion and provoking responses from both Kagan and Barrett. So I find that talk a little bit of a frolic and a detour. Talking about the major question doctrine, what it means. It could be something that does useful and important work and intuitively it makes sense to me. But until we actually see how it's applied, and we have six people on the Court who are trying to distance themselves from their past positions, the three Democrat appointed Justices who want to distance themselves a little bit from their attack on the doctrine, and the three, I don't know how to describe them, perhaps most conservative, Kavanaugh, Alito and Thomas, who want to distance themselves from their careful and resolute wielding of the doctrine in the past. So, you know, that's interesting and it tells me we don't yet have a consensus about what it really means. And until we do, it's a rhetorical ploy rather than a useful legal tool. But if you were to focus only on the three Justices who joined every part of the Chief's opinion, you know, it makes kind of sense. You know, it's a kind of a Bayesian analysis really. You have priors, you see something that departs from the priors and you want the departure to be explained to you. And when it's consequential, when Congress authorizes presidential power, you want to be sure that's actually what they're doing. I mean, stated that way, it makes perfect sense to me. Of course we have a lot of disagreement about what the right priors are, which just makes it complicated.
- [10:40]
Scott R. Anderson
Yeah, it really is, I think, a really fascinating opinion if you're a real nerd about this stuff. I don't know if we need all 170 pages that ended up being. But the fairly deep like methodological conversations were actually kind of interesting and in my mind, actually something that kind of gives you a lot of hooks to think about ways that this opinion could be influential in other domains, although it's not clear to me exactly how, because it did end up being kind of such a fractured sort of ultimate holding. I want to turn to you on one particular aspect of this or a couple of them, but I'll start with this one. And this is question about the foreign relations implication, the relevance of this as a foreign relations case. We saw Justice Kavanaugh come out in a very lengthy and hard argued primary dissent. I would say Justice Thomas also authored a dissent, basically saying, which has been pretty consistent of Kavanaugh going back to his time on the D.C. circuit and even some writing he's done. I'm thinking specifically of this 2009 law review article for the University of Minnesota that I talk about all the time because Kavanaugh decided to wax very at length about his approach to various national security related topics. But he's always basically said, look, if it's foreign relations related and it's a statute, we should be giving lots of deference to the executive. The Congress may win in the end if Congress clearly contradicts the executive. Doesn't mean the executive has the final say. But if there's ambiguity in the statute, we should be leaning towards giving the executive a lot of sway in how to decide that. Meanwhile, we saw the other conservative justices in the majority, Chief Justice Roberts, Barrett, Gorsuch, all say no, really, foreign affairs, at least in this type of foreign affairs. I think Roberts kind of caveats a little bit. This case isn't clearly at least the type of foreign affairs case where you have to apply a different rule or where the majors question doctrine might apply with less weight or not as significantly. Instead, we need to look at this through the regular lens of a statutory tool. You shouldn't get any heightened deference from at least in this context and potentially in other foreign affairs context. Does that seem to have broader ramifications for you, Paul, about how we think about this? I mean, I would have guessed perhaps there would be Chief Justice Roberts and Barrett may have been friendlier, maybe even Gorsuch friendlier to Kavanaugh's general approach in foreign relations cases based off their somewhat more deferential posture in cases like Abbasi and a couple other foreign relations cases over the last few years that have been more kind of conventional, deferent to the executive oriented, and they didn't really adopt that posture here. Is that because this is more of a trade as just a unique subset of a foreign relations case, or isn't really a foreign relations case, or do you think there's something more fundamental here about how these Justices think about foreign relations?
- [13:18]
Paul Stephan
Well, the problem in a globalized world is that everything is foreign relations, which means nothing is. And if you're going to wield the concept, you have to have a fairly functional understanding. I think an idea that was a thread among the six people in the majority was that this is not a case where any independent powers of the President are directly in play. The belief that there are would mean that there's no outward facing issue where the President is in play, that if there are any consequences for the rest of the world The President is our steward, our trustee for that. And that just seems way too maximalist position. I don't even believe Kavanaugh really believes that, although it was a necessary move for his position. I think it's interesting that Kavanaugh had a backup position that would allow him in the future to jettison this maximalist understanding of foreign relations, which is namely cure the mqd. The major questions doctrine applies here is just that the evidence of Congress's intent in favor of this power is so overwhelming that it's no longer a major question. I mean, major question doctrine is a gap filler when it's appealing to a prior when the evidence we can detect doesn't help us. And if the evidence you can detect already dictates the answer, you don't need the doctrine. And Kavanaugh said that too. And I would be happier if in the future he sticks to that path rather than thinking that as soon as there's anything outward facing, there's an inherent executive discretion at play. Because I honestly believe everything meets that test and I don't want to live in a world where everything immediately envelops the executive's inherent authority. I will note, Scott, that the last time I was on here was to talk about a different IPA issue, which is whether it authorized the. That's right, the takings of Russian property in order to aid Ukraine. And my position then still is that but there's no takings power under iipa. I think the textual arguments are fairly strong, even though they're really famous people who disagree with me. And I think the treating taxes and tariffs as a subset of takings is a reasonable way to understand the problem. I know no one on the courts found appealing my analogy between taking and taxes. I still think it's attractive, but I didn't attract them.
- [16:00]
Scott R. Anderson
Well, you know, Paul, I was thinking about this actually, because you mentioned I can't remember whether I saw you or maybe at an email exchange we had earlier about or no, I think it was when you some emails around the piece you ended up publishing with us where I actually see some of the logic potentially that you raised underlying or intersecting with something majority does, which I thought was one of the more interesting moves, which is they really hit and this is in Part 2A1. I think I've got the numbering right like the part that's clearly all six justices, not just the three conservative justices, where they say essentially, look, the framers viewed the power to tax as and they're quoting from the Federalist Papers throughout this whole discussion the power to tax is the most powerful power being given to the federal government. And therefore they deliberately structured in a very limited way, which is that the House has to originate bills to fund government through provincial legislative process. And while Congress can certainly delegate that authority, you would expect them, given how of such primary importance it is to do so expressly, they say, which is part of the reason why all six of them, even if they didn't, even the liberals who didn't buy into the major question doctrine were able to arrive at this conclusion saying, yeah, but iipa, even under conventional statute interpretive methods doesn't give this authority. But that actually says something about the takings question, I think for hipaa, because if you really see it as the high barrier of authorizing a revenue generating action, if vesting assets is revenue generating, which I think it would be foundationally, at least vesting in the US Government may be different. If you're vesting in a third, transferring ownership to a third party, that seems to raise the same question. And then that made me think about, I wrote about this for a short piece for Brookings the other day. What about the 25% Nvidia deal or the minerals deals with Ukraine and all these other very unorthodox revenue raising measures that this administration has made such a keystone of its broader policy agenda left and right. I think this puts all those as a bit of uphill battle to justify if and when you get a legal challenge than any of them. Do you think I'm reading too much into that or is there something there?
- [18:07]
Paul Stephan
I think there's something really important there. I think there are at least two different ideas in play. One is to sort of pick the taxpayer's pocket language. I'm paraphrasing, but from I forget which federalist, but it's Madison who wrote it. And you have both the chief and at least one of the concurring opinions citing that language. And I think that's based on an instinct about liberty and the protection of property from the state. But there's also another idea, and Alito actually articulated it during oral argument, even though he didn't ultimately find it convincing, which is whenever there's money, the possibility of corruption is greater just because money can be used for anything, unlike other kinds of assets. And that one of the risks in taxation, tariffs and takings, I think is that you never can be clear what the government's motives are. They say they're regulating, but the chance that somebody's pocket is being aligned is just as real. And the way I put it in my piece for you guys today is money matters, and I think six of them said that. Ironically, Kavanaugh, he was saying this during argument and he puts it in his dissent. Oh, money isn't nearly as bad as other things. A permanent barrier is not as bad as just taking some money. I think that's actually just backwards if you take the possibility of corruption into account. So I think the idea of money mattering is a thread that, A, I think is real and B, I hope the court keeps in mind in future cases.
- [19:45]
Tyler McBrien
Well, speaking of money, Paul, I'm curious what you make of, I guess, Trump's stated intent to continue on with tariffs by other means. You know, he registered his grave disappointment in the decision ultimately, but was kind of undeterred in his tariff plans. So I don't know. Yeah. What you make of the authority that he's claiming for this next round of global tariffs and everything he announced?
- [20:10]
Paul Stephan
Well, the other authorities are legitimate Title 19 statutory authorities. You can argue, particularly with the one he's relying on now, balance of payments. You can argue, I think, persuasively, that what balance of payments crisis? You know, from his point of view, the dollar is too strong. As you know, we want some weakening. But you can also see that at least the courts would not seriously review that. And everything else he's doing is within the confines of the statute. The problem is, for him, if you believe his strategy is maximum power in order to maximize bullying, it's the threat potential of the authority that he thinks leads him to get to good results from bargaining. The balance of payments like IEEPA can be implemented immediately. So the rapid action aspect is attractive. But unlike his understanding of ieepa, his misunderstanding of ieepa, there are real caps, limits on what you can do. It's no more than 15% and no more than 150 days. I'm prepared to concede that you could roll over the 150 days and make them quasi permanent. But 15% is a pretty hard limit. And what he's not said so far is he likes to project the idea that he's not bound by anything, but he's actually been kind of law compliant in this area. At least he had a theory with iipa, and his authority under the balance of payments section is stronger once you get past, do we actually have a crisis? It's pretty explicit. All the other authorities he has in title 19 take time and take away the element of surprise, although they are what he relied. He relied on 232 in the last time he was President Biden actually ratified that and used that tool himself. And as this litigation over IEEPA was proceeding, Trump invoked at least twice, I think Section 232, that's to say national security tariffs, even though they're clunky because they take time, you have to have findings, but they don't have the substantive limits that the balance of payments rule does. So, I mean, one hopes at some point he's going to discover that this tariff oriented policy is actually a pretty crappy idea in this time and place. It's not that theoretically tariff barriers can't do valuable work, but it's very hard to see what benefits it's producing. And I think easy to see people associating the higher cost of things cost more with tariffs. I think he's going to have that hung on him in the next election round. And one hopes he might actually back away from this obsession with tariffs. But it's not like he's got a great history of backing away from his obsessions.
- [23:16]
Tyler McBrien
To your point about what Trump is after really is a tool for maximum pressure, maximum bullying. And he seemed to acknowledge that, not to jump the gun too much and go get into the State of the Union. But he said something in the State of the Union to the effect of an acknowledgment that, you know, foreign leaders are also seeing this, this decision and reading it. But he kind of tried to, to get ahead of that and say, you know, they know that I as president have other powers, you know, to, to impose tariffs and so they should take the deal that they're, you know, take the, I can make the deals much worse for them, something to that effect. So, you know, he's, he's very aware of the, you know, the audience of this decision is beyond domestic readers.
- [23:57]
Paul Stephan
Well, I think that that's true, of course, and that's fully consistent with his view, which is this is all about power. There is another point of view, and I don't think it's a soft, wishy washy rule of law is wonderful argument, but it is, you sometimes can do better in bargaining if you're seen as trustworthy. And law is a way of making a commitment to increase trust. And I think one could fairly argue that his pattern over the last year has undermined confidence with our counterparties in the past, at least allies that weakens us because whatever he says at the moment, something else can happen. Something quite different can happen very quickly. So I wish he would appreciate that sometimes building confidence in others about your trustworthiness is actually not weakness, but strength.
- [24:54]
Tyler McBrien
Yeah.
- [24:55]
Scott R. Anderson
And this point about the bullying aspect of this, I think really is beginning to influence. We can see a bearing into how people are looking at this post learning resources kind of landscape. It seems to me like a lot of the commentariat, a lot of people, particularly in the media, are kind of taking the Trump administration at their word to say, oh yeah, we can reimpose most of this through existing tariff authorities. And that frankly, a lot of folks who look at this and say like, well, these tariff authorities are pretty broad. They're a little open ended. They're statutes. The executive branch traditionally has gotten a lot of discretion around them, but I'm not sure it isn't much more fraught terrain than we might fully be able to predict or at least the potential of illegal risk is there for the simple reason that we're talking about statutes that do have defined not only procedural requiring, but substantive standards, broadly worded but fairly with a clear scope, whether it's trade imbalances or national security concerns or certain other concerns, strategic industries. So you can't be entirely pretextual. And we're living in a post sloper bright world where that really bears in here. And we're used to, I think, a lot of trade being through the lens of the Federal Circuit, which has embraced a super, super deferential posture towards a lot of these statutes traditionally, which I'm not sure how well that does before the Supreme Court. This Supreme Court, this particular iteration after they've bought into Loperbrite, particularly now that we've also seen at least the sixth justice majority here install a strong interpretive presumption against revenue raising capability, which you think would also bear into the scope of statutes that are clearly intended to raise revenue if you're trying to use them for purposes beyond what Congress defined. And by the way, they did not see trade as enough of a foreign affairs case to warrant heightened deference, unlike Kavanaugh and Thomas and Alito. So if I were the administration, I'm not sure how confident I would be going in saying we can use 23, 22 and 301 to rebuild all this stuff. I think it might be more of an uphill fight than they can acknowledge. They have to say that because they're trying to get leverage in negotiations and they have to be as confident outwardly as they can be. But I think there's a reason they wanted to win this case. Why they didn't start all these investigations six months ago and be shifting over to 301 and 232, which it easily could have done in the time it took to litigate this case. I think it's because they have other challenges and disadvantages there in addition to just the lack of flexibility compared to aipa. So I don't know, but we'll see. We don't really know. Before we move on to our next topic, let me ask a little bit about what this means, kind of the broader meta conversation. Amalia, I want to turn to you on this. Look, I mean, the big narrative that people took away, I think I saw at least a piece in the Times about this. I think more times where the post, I can't remember maybe both talking about, oh, this is Roberts finally getting fed up with the Trump administration, and this is the Roberts court being willing to push back. And obviously that feeds into a broader political narrative about how successful Trump has been, how much he has the Supreme Court in the back pocket, how far he can push his legal authority while expecting pushback. Where do you think this case is fitting in that broader narrative and discourse about the idea of Trump's relationship with the court and what that means for the outer limits of his power and the reality of it? I'd be curious about your sense of this, Molly.
- [28:10]
Molly Roberts
Yeah, I mean, I think it's something, but not everything. I think people are making proclamations that are maybe too grand about how much this shows the Supreme Court sticking up for itself. And I think to tie together some of what you were just talking about and the question of how much does this really mean, you were saying, oh, maybe they'll have a tougher time if they're trying to impose tariffs under section 232, in which case they're going to be inviting courts to answer, are tariffs actually about national security? And so one thing that I thought was interesting in this case was the court doesn't answer the a slightly similar question of was this an emergency? It just says, well, they even in an emergency, you can't do tariffs under aipa. But the way that the Trump administration is trying to justify a lot of the other sort of unprecedented, most alarming actions it's taking, everything from domestic deployments to some of its foreign policy moves is emergency. And so, you know, the court didn't answer a much bigger question. It answered a pretty narrow question. I guess you could look at the major questions doctrine stuff, and you could say that that suggests that there are three conservative justices who are willing and who have carved out space for themselves to say that broad interpretations of congressional authorization to the president to act aren't as acceptable as we might have thought they would have found them. But we don't know that they're going to do that. And we don't know still whether everything that they did on the shadow docket, we still don't really know why they did it. So I just think, sure, this shows they're not totally in Trump's pocket, because if they were totally in Trump's pocket, they would have said, yes, Mr. President, go ahead. But I don't really think it shows much more than that in this narrow area, at least they're willing to tell
- [30:02]
Paul Stephan
him, no, I'm not part of the zeitgeist. I thought the narrative about the Supreme Court being in Trump's pocket was an echo chamber perspective and not really backed up by a lot of facts. I think the only case they've done so far that you can worry about is it's a big case, the immunity case, but even the immunity case. I think you saw both Roberts and Barrett pointing in directions that they could back away from. The more concerning aspects of that opinion and the interim docket, I think the priors that they have about protecting the status quo is defensible. It's not maybe what I would like, but it's defensible. So I think everyone's worried. The anxiety that the president generates is. I feel it, too, but I think I was never concerned about the court being in his pocket. And I don't see this decision as dispelling a concern I don't have.
- [31:08]
Scott R. Anderson
Yeah, I think I end up closer to you, Paul. Although I will say the Supreme Court, I think, has been pretty reticent on the emergency docket, interim shadow docket, whatever you want. Pick your title for that.
- [31:22]
Molly Roberts
Yes. I'm sorry, I used to politically charge terms.
- [31:24]
Scott R. Anderson
No, I mean, they're all there, they're all in play, and they're all inappropriate in their own degree. You've seen the court really, really be hesitant to disrupt things. They have in a handful of cases. Right. Whether it's the first foreign assistance case, whether it is the alien enemies case, obviously, like a couple of cases where they've said, even on an interim basis, we're not going to let the Trump administration do its want to do, but it's been reticent to that. And we've all kind of been operating on the assumption that that is a good indicator of the merits. And no doubt it points towards the merits for a lot of the justices. But I'm not sure there isn't something like a little true about the fact that these are interim decisions, like, these are measures that the Court is installing, even though Justice Kavanaugh has been so express about saying these are the interim rules that should then control everything around the country. Country until we make a final decision. It's painful to say that because you're like, of course this has real world implications. You're essentially letting administration do something that in the end, you may determine is unlawful because you're operating on a bunch of presumptions that the executive branch needs to make certain policies in the space, and we shouldn't disrupt that until there's good reason. And you can see how they talk about the equities. They weigh the executive branch's equities so heavily in all those assumptions, assessments. And I don't buy that, but I'm not sure that actually carries through to the final product and the actual ruling on the merits when the Court gets there, which in many cases not gonna be for, like, another year or two for a lot of these foundational disputes. I think this may be kind of an early indicator of that. Now, I don't think that means the Court's always gonna buck the administration, Right. Like, we see all the different justices in the kind of the middle of the ideological spectrum. I throw Kagan in there, too, potentially, as she has been cases where she sided with the executive branch certainly in the past, all having different lines and different issues where they view things a little differently. Gorsuch is a little bit of wild card, but when it comes to Native American law and when it comes to certain civil liberties things and libertarian perspective, he's quite willing to buck the executive branch somewhat vocally, as we saw here. And it looks like emergency powers, maybe one of those things, right? Barrett, Roberts, they have slightly different lines. Kavanaugh, frankly, more deferential to the President than I fully expected going into this, particularly in the domestic realm. But, like, even he seems to have certain lines. So the real question becomes, like, where does the issue fit on those sort of fractures? And I think it goes too far to kind of generalize like, a broad institutional presumption one way or the other. And this case, I think, helps demonstrate that, at least in that the fault lines, even within what we think of as the cliques of the Court, are really actually quite diverse and can really matter depending on which case is before them.
- [33:58]
Paul Stephan
So the last case I worked on as a law clerk was the Progressive magazine case, which you're all too young to know about, but it was a priory restraint with respect to publication of information that was not classified but the government claimed was dangerous. How to build a bomb, a hydrogen bomb.
- [34:15]
Scott R. Anderson
Oh, I remember this. Yeah, yeah, absolutely, absolutely.
- [34:17]
Paul Stephan
And the Supreme Court, using its interim docket, refused to disturb the backed the government up in leaving a prior restraint in place, even though the government had a horrible case. But they just felt on the fly if there was even a tiny chance that a hydrogen bomb would result that wouldn't, otherwise they were not going to do anything on the fly. And of course the case fell apart because it really was a terrible case on the government's part, and the Court's support for the First Amendment and opposition to prior restraints remained as solid as before. So that's just one experience when I was very young. But I take away the idea that there's something really different, a emergency case, an interim case, when you don't have a record, you don't have full legal argumentation, and you're terrified about certain outcomes. So I'm just not alarmed by what they've done so far.
- [35:19]
Ben Whittis
Hey folks, Ben Whittis here. This episode is brought to you by the folks at Ground News. I want to talk to you about media and trust people. Listen to this podcast and read Lawfare's content intent because Lawfare brings people information and analysis of a particularly high quality and that generates trust in an era when trust in news and media sources is low. Ground News is another organization that is working to create trust in media and media worthy of trust. It's an app that doesn't just bring you news on subjects you're interested in. It curates that news so that you can see information that people of your own political persuasion are likely to miss. It's not publishing its own stuff, but it's also doing a lot more than aggregating. It's identifying stories that are filling a blind spot that is pervasive for the left or for the right, for example. The app also shows you bias ratings and factuality ratings for each news organization covering a story so that you can see whether the story you're interested in is mostly being covered by news organizations of the left, right or center. Let me give you a specific example. I just returned from Ukraine, so I was particularly interested to see how Ground News would handle stories about the war there. It flagged that an important story about deadly Russian strikes in Ukraine is being largely ignored by Russia right wing press. On the other hand, it also flagged that left outlets are ignoring a story about Ukrainian nationals in Germany charged with trying to send parcel bombs to Ukraine at the direction of Russian intelligence. These blind spot notices are really useful as a way of seeing what information you are probably not seeing on stories of interest to you. Or consider the recent story about President Trump Trump proposing voting reforms that demand voter ID and proof of citizenship of would be voters. The Ground News app shows 29 media organizations reporting on this story, and it shows radically different headlines associated with it depending on the ideological valence of the outlet from the free press Washington power struggle Jeffries moves to block Trump's plan for federal election oversight. By contrast, the Daily coast headline Republicans bail on states rights so Trump can rig elections again. You can see information about each news organization's bias tendencies and its factuality ratings. You can even see information about its ownership. I find Ground News an impressive tool for checking my own biases and the biases of the media I consume, and for seeing the news that people like me generally don't see. I encourage you to check it out. You can get Ground News's Vantage subscription for 40% off, which allows unlimited access to the Ground News app by visiting groundnews.comlaw that's groundnews.comlaw one more time. Groundnews.comlaw check it out I really think you'll be glad you did Delete Me makes it easy, quick and safe to remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. Hey folks, the other day I got a phishing attack and I got to tell you, it was good. Even some of the URLs looked real and I almost fell for it. But it was missing one thing. It was missing any personal information about me. And that made me really glad that I used DeleteMe. Delete me does all the hard work of wiping you and your family's personal information from data broker websites so that when the phishing attack comes for you, it doesn't have something that makes it really seem authentic. Delete Me knows your privacy is worth protecting. Sign up and provide Deleteme with exactly the information you want deleted and their experts take it from there. I am someone with an active online presence. I express political opinions and I am not looking to have that turned against me with personal information about me used in spear phishing attacks. You know I've been the victim of identity theft harassment and if you haven't, you probably know someone who has. And I'm telling you I'm an example of this. Delete Me can help. So take control of your data and keep your private life private by signing up for Delete Me now at a special discount for Lawfare listeners. Get 20% off your Delete Me plan when you go to JoinDeleteMe.com lawfair20 and use the promo code lawfare20 at checkout. The only way to get 20% off is to go to JoinDeleteMe.com Lawfare20 and enter the code Lawfare20 at checkout. That's JoinDeleteMe.com Lawfare 20 code Lawfare20.
- [41:04]
Scott R. Anderson
Want to turn your timeline into a fast lane digital? Twin it to outpace the field with fast and confident decisions. Transform the everyday with Siemens that new thing.
- [41:20]
Advertisement Voice
Yeah, we've got it. The Drop by GNC bringing you all the newness that matters. Hand picked by the pros who actually know what's up and what's proven to work. We keep you on top of the trends and dialed into into what's next. Whether you're crushing it at the gym, leveling up your game or thriving every day, the Drop by GNC is where the latest solutions in health and wellness land first non stop innovation and fresh finds daily. Explore what's new and what's next on the Drop by GNC.
- [41:49]
If you're an H Vac technician and a call comes in, Grainger knows that you need a partner that helps you find the right product fast and hassle free. And you know that when the first problem of the day is a clanking blower motor, there's no need to break a sweat. With Grainger's easy to use website and product details, you're confident you'll soon have everything humming right along. Call 1-800-GRAINGER Click grainger.com or just stop by Grainger for the ones who get it done.
- [42:21]
Scott R. Anderson
Well, we will have lots more to talk about coming from the Supreme Court, I have no doubt in the months ahead. But for the time being let us move on to our next topic as we've got a couple other high priority items we should spend some time talking about. Tyler, I want to come to you as we turn our eyes to the south across our southern border to one of our two closest neighbors here in the United States. Mexico had a extremely dramatic and violent week, including in Puerto Vallarte, where I think you just were just a couple of weeks ago, if I'm remembering correctly.
- [42:51]
Tyler McBrien
Right, and so was a fellow associate editor, Catherine Pompilio.
- [42:55]
Scott R. Anderson
Yeah, absolutely. And I had a couple of friends who were there. Evidently they flew out the day before all of this kicked off thankfully, but I was not aware and desperately checking in on them over this weekend Talk to us about what happened with this, both the military operation and the pretty extraordinary response, although not unforeseen response, from the Jalisco New Generation Cartel. It's a pretty extraordinary set of events, but lay it out for us a little bit.
- [43:19]
Tyler McBrien
Yeah. So, I mean, just what you were saying just now about how. I was there very recently. Catherine was there very recently. This is a very visible image. Even if violence does not spill over the border, it's a very visible situation to many Americans, many Canadians as well, who go to Mexico on vacation this time of year, and especially in Puerto Vallarta, where some of this unrest broke out. But to back up what happened was that over the weekend, an elite unit of the Mexican army killed the head of cartel named the Jalisco New Generation Cartel. That's the translated English name, but the acronym you may hear is cjng. It's quite an interesting cartel. It's quite violent and quite diverse in its portfolio. It's not only a trafficker of fentanyl to the U.S. for example, they've also have other criminal enterprises in defrauding, for example, in Nayarit, which is another kind of vacation destination, they defrauded some Americans who were buying timeshares there. So they have other irons in other fires. And they're also quite decentralized. I think they were kind of an amalgamation of several groups. And so while this was one of its leader, essentially, it's very far from certain whether the kingpin strategy, as it's called, which is basically a decapitation strategy, it's often discredited in general, but it seems like very unlikely to work in this case of this cartel. The other thing I would say is that the kingpin strategy has been widely criticized by, by Claudia Scheinbaum before Mexico's president. And so people are seeing this as a win for Trump's maximum pressure campaign, in which he essentially pressured the Mexican government to do this. There was reporting that there's US Intelligence sharing that led to El Mencho as the leader, his intended capture, and eventual death. But I haven't seen any reporting that There were any U.S. troops or U.S. personnel directly involved in the operations. Like it's just a Mexican personnel operation. But almost immediately after his death, violence broke out across the country, I think at a scope that surprised a lot of people in terms of the geographic reach. It wasn't just, for example, located in Jalisco or Guadalajara, but it was spilled out into, you know, areas, very touristy areas that are seen as more safe or more secure. But as of recording now, it's Wednesday, February 25th. Seems like the security situation has calmed down quite a bit. But again, given the makeup of this particular cartel, it remains to be seen if it will stay calm or this violence will continue, either for battles between who will succeed El Mencho, battles between other cartels that, see now the Jalisco cartel is weaker. So I think it's a very precarious situation.
- [46:18]
Scott R. Anderson
Yeah, it's worth noting. I mean, that's the criticism that the strategy always bodes, is that when you eliminate, when you cut the head off the snake, the snake splits into like, potentially 10 different snakes that then all try and fight and eat each other until one rises to take up the place of the other eventually. And that's a very chaotic, messy process. So you end up with a lot of violence between factions, efforts to assert violence and control over territory that can have a lot of harm to civilians. It can be destabilizing, less predictable criticism people have made also about terrorism groups and about other kind of like, hostile actors. This question about what's the trade off between the enemy, you know, that's a problem, but at least you have some familiarity with them, some established norms and patterns of behavior, some understanding and the range of enemies you don't, and the balance of that. And I suspect we have not seen the end of the chaos that could come from this. Maybe if there's a rapid succession in some, and we may find out in the next few days, somebody was quickly able to assert control over the cartel. With El Mencho's removal, that's possible. I've read some reports that suggest a couple of potential candidates. I don't have any position. I have no authority to evaluate that because I do not know enough about this. But if not, you could see all sorts of stuff coming out, whether it's other retribution campaigns, and we've seen this and other cartels target senior Mexican officials, target Americans. Not just Americans, but the consulate in different parts of Mexico. And as Riza was 2022, we had a US consulate come under attack from hand grenades and firearms. So more may be coming on the horizon. And for that reason, Molly, I want to come to you and ask you about this, talk about how you think this plays kind of to the broader audience of observers, like more conventional Americans. You have lots of people who have national security perspectives who may have views about wealth is a good thing to do from a policy perspective, from fighting cartels, fighting narcotics, if that's how you view them. Views about how cooperative Mexico hasn't been and whether they've done enough or not enough. But I'm kind of curious about the broader kind of fit politically for this because it's a bit of a double edged sword. You can see this as a victory for Trump saying, oh well, he actually got the Mexican government to do something that combated this person. But the consequence was pretty dramatic disruption in a way that Americans experienced directly and could be much more for many Americans in really tragic ways. There's no short of Americans in Mexico still that could be affected, affected by this and certainly Mexican tourism if nothing else. So how do you think this plays or could play? What are the different ranges of possibilities? You see?
- [48:48]
Molly Roberts
No, that's interesting that you said it does affect Americans directly because when you were talking before that, I was thinking, oh well, you know, it doesn't affect Americans all that much. You're right. It affects people who were in Mexico, it affects people who want to go to Mexico. And I suppose for people who live near to Mexico and might travel there more frequently or just like to go to Mexico from wherever, that's true. But for the average American who's observing it, I think, you know, what you hear is that we took down this cartel leader and probably it doesn't affect you all that much. And indeed, when you're talking about the kind of larger effect if there's chaos on the ground in Mexico, if there's a struggle for power within or among drug cartels, that is certainly a lot more violence for Mexican people. But it may also very well be a reduction of drug shipments, which is what the President wants to say he's achieving here. So I think that's the way in which it can play positively for him. I'm not sure how I would like to think that many Americans care about chaos on the ground in Mexico, care about the loss of life in Mexico. But I think that they presumably, and I care about that less than they care about the loss of life in America. So if he's trying to bill this as well, you know, less Fentanyl here now than less anything here now then that is, is beneficial to him. So yeah, that's kind of how I think of it. And of course he's been talking about how we were so successful with the boats, we did the battle on the sea and now we're doing the battle on the land. And so this is him saying, here I am doing the battle on the land, or at least we were instrumental in making this happen. And I got her to do this. And the CIA did share this Valuable intelligence and all of that.
- [50:36]
Scott R. Anderson
Yeah, I mean, part of it, I suspect comes in what the sort of counter pressure that comes from the cartel is if there is this concerted effort. But the fact that you saw such a quick response in tourism areas, clearly effort intended to impact Mexico's broader economy and in ways that are going to be more visible and affected by international audiences, strikes me that that's a pressure point they're going to talk about. And what's different, I do think, from the maritime strikes or other actions the administration has taken elsewhere is that we've got a giant border with Mexico. And a lot of Americans on that southern border who are Republican voters traditionally, although who knows so much this next election because Trump has been suffering a little bit in some of the border counties or border districts who do have that kind of cross border interaction where it can maybe a little bit more real for them or at least they have family members, associates, business contacts, more on the other border. But Paul, let me come to you on a legal aspect of this as our resident law professor, to talk to us about this stuff. I look at this and I think to myself, you know, there's some irony to the way the Trump administration's counternarcotics campaign is playing out because they're using military force most directly against trend maritime strikes, against these narcotics traffickers who are while a dangerous cartel that does dangerous things. You look at the litany of things that TDA is accused of doing and very few of them resemble conventional like terrorism or involvement in armed conflict conflict. You look at some of the Mexican cartels, it looks a lot more like that, including paramilitary armed forces, heavily armed, and again attacks on US Consulates, US Nationals, not to mention Mexican officials. And so it's strange because in some ways you have what I think is like you could see an administration that want to take military action, have a stronger legal argument that a military response is appropriate against cartels engaged in this sort of behavior closer to home as well, something that maybe the self defense nexus could be a lot stronger. But then you also have this question of, well, doing things with or without Mexican approval over the barrier. There's obviously a political dynamic, even if you could make an unable or unwilling argument. And then the Trump administration's effort to kind of force different aspects seems to have made cooperation, overt cooperation with the United States, particularly on direct military action, politically really problematic in Mexico. I mean, how does the law and the politics around this stuff in your mind kind of intersect about providing the policy options Trump administration has available to and it has a kind of, I don't know, shot itself in the foot a little bit by approaching the bowling approach to shine bomb, which makes it harder to engage in the more direct military cooperation where it actually might be more useful and meaningful here and have a more direct impact than it might in other sort of broader parts of their counternarcotics agenda. That's kind of my takeaway thought from this. I'm not confident. I'm curious how your sort of reaction to that.
- [53:26]
Paul Stephan
Scott, I agree with you and I'd even put it a little more strongly. There were rumors going around, I never heard this from anyone inside the government, but you know, third hand, that the legal work that was deployed to defend the boat strikes was originally developed with Mexico as the envisioned target. And for the reasons I think you've identified, the effort to develop a, a useful cooperative relationship with the Mexican government, the fact that Mexico is just a bigger problem for us than Venezuela and the fact that we had no credit to lose, at least with Maduro regime anyway, they took the legal analysis that kind of fit Mexico some problematic assumptions, but not crazy, and applied it to these operations with respect to the Venezuelan smugglers that are extremely difficult to defend. It's hard for me to imagine a plausible set of facts that would align an acceptable legal argument with what we're doing in Venezuela. And I have seen nothing to do suggests, you know, that the legal tools that we have would require politically, not so much legally, some level of cooperation with the Mexican government. We've had leaders in Mexico in the past that have been happy for us to do their dirty work. And one could conceive on a more trust based relationship with President Scheinbaum, something like that developing. But we're not there yet. And as a result we don't really have tools to deal with the uprising in Mexico. And just going in in reaction to what's happened in the last week would I think be very concerning. But going in, I mean, you know, using the kind of tools that they've been using against Venezuela.
- [55:27]
Scott R. Anderson
So there's another really interesting aspect of this campaign that jumped out at me in some of the media coverage they mentioned. I'm blanking on the names, Amanda, that one of the members of the organization, the Jalisco New Generation Cartel that was killed ultimately after El Munch was killed, was listed as their head of tactical operations or how he was described. I don't think that was a formal title. But this individual both led the tactical kind of military elements and was believed to have been coordinated a Lot of this response around the country before he was eventually killed by security forces. But also specifically know that he led their information operations campaign, which is such an interesting thing to have in play here. But we're seeing disinformation and information management playing a really, really interesting role in this. Talk to us a little bit about that, Tyler.
- [56:12]
Tyler McBrien
Well, if you'll allow me to be vulnerable for a second, I, like fell for one of the videos that was being spread, at least at first. And it really speaks to. I think, you know, maybe I'm telling myself this, but it speaks to how sophisticated their disinformation campaign really is. But no, in all seriousness, I mean, they, you know, the term narco influencer has been used. These cartel members are. A lot of them are very online. They're very flashy in showing the firepower that they have at their dispos. And those are real videos. But then they also have been, especially in the past few days, putting out AI generated, very convincing looking, in my opinion, videos of more chaos and more violence that isn't real in order to spread fear and contribute to this idea that the government has no handle on the situation. And it's spreading not just in Mexico, but outside of the country. And I'll also say, you know, I think it's also being made worse by a very low level of trust right now, I believe, among the Mexican public toward the government. The cartels are by no means popular. They've disappeared thousands of people. They've brutally murdered people. But I don't know if this operation was so is so popular among the Mexican public. I also saw some widespread speculation that, that the government, because they didn't immediately release a photo of El Mencho's body or report of his DNA. DNA that some people have doubted that he was even killed. And it's even his body. I don't haven't seen any evidence, you know, to support that, but it goes to show how these things can spread. You also had Elon Musk on On X saying that basically alleging that Claudia Shanebaum had. Has takes cues from the cartel bosses. She has, for her part, said that she will, you know, seek legal action against him. I don't know if there's a case there because of, you know, free speech protections here, but it's this soup of disinformation that's just being supercharged by generative AI capabilities. Again, this very, I thought fairly convincing video of the Guadalajara airport. Not the one of the planes on fire, but there was another one of just like smoke. And you know, you're just, you're going through a stream of video after video, many of them real, and it kind of mixes all in.
- [58:33]
Scott R. Anderson
It is really wild and hard to keep track of. I, you know, back in an era where I was more active on social media, I've kind of had a little bit of a doors for social media the last few years. And I don't regret it if I'm being completely honest. But I was much more active when we had like the Turkey coup in 2016 and then the fight in the Kurdistan Regional Government between it and the kind of main government of Iraq in 2017. Both things that I had kind of a vested personal interest in for relationship reasons and professional reasons. You know, I used social media so much to follow what was going on day to day because you get so much more information so much faster than you could in the news. But even then, way before we had AI and these other tools, the rate of misinformation was wild. And then it was just mislabeling videos, like people putting something up. If you look closely enough, you're like, oh, that's not even Arabic there. That's obviously clearly not what this person is saying it is. And you had a couple of, a lot of like, you know, a community effort to kind of regulate and enforce those much harder game now. And it is intriguing. And the fact that you would have a cartel have a director of information operations, I think is itself a director. A pretty, pretty notable development about how much of a this terrain has become essential strategically to actors well below the state level and not just conventional corporations, but these kind of potential malign political actors as well. It's just fascinating. Well, speaking of misinformation, we may have gotten a little bit of a dose of some last night from very official sources. Last night was of course, the State of the Union. And not just any State of the Union. The longest State of the Union union in recorded history, I guess, is the way to describe it. I don't know whether I know it's the one in recent memory is how it's being described. I don't know if people have compared it to States of the union from the 19th century, where we mostly have it in written form. I guess we don't know how fast they read those things. There might be records about.
- [60:11]
Paul Stephan
They don't read them, Scott.
- [60:12]
Scott R. Anderson
They delete the paper. There you go. Exactly. Well, maybe if we had to read those out loud at Trump's pacing, we could truly compare and say it is in fact the longest in history. But the longest in recent memory from President Trump. It was a interesting address, I think one very different from what a lot of people expected going in. I'm not sure how well rooted those expectations were, but still very signaturely Trump in style. And then we also got, actually, I thought, a fairly interesting response from, well, actually a lot of different kind of fragmented Democratic responses or different responses from different political groups. The official one from the Democratic Party was from Abigail Spamberger, the governor of Virginia. That I thought was kind of interesting and notable as well. Malin, let me start with you. Talk to the US about what you saw that was of interest in the State of the Union. What jumped out at you about it that surprised you, that didn't surprise you, and what you think it tells us about the current political moment we're in and the implications for the policy issues we kind of care about, whether it's Iran, AI. The whole range of stuff that he touched on. That's in our sort of zone at lawfare.
- [61:11]
Molly Roberts
Yeah, well, 20 minutes of it were about hockey, so that was new. To be fair to President Trump, to atone for saying shadow docket, I think we get misinformation in almost every State of the Union in really recent history, regardless of which side of the aisle it's coming from.
- [61:29]
Scott R. Anderson
Absolutely.
- [61:29]
Molly Roberts
We get exaggeration. So I would say I thought it was pretty par for the course in terms of the touting of my accomplishment section where he exaggerated, for instance, how much he's brought in an investment. I think he said 18. Did he say 18 trillion? Is that possible? He said a huge. Yeah, he said 18 trillion. And he was putting together pledges, maybe, but it just wasn't a number rooted in reality. He, of course, exaggerated job growth, exaggerated how much inflation has gone down. He talked about a turnaround for the ages, that the facts don't really back up. And the degree of exaggeration might have been a unique to President Trump thing, but exaggeration is not new. And then I suppose what was different, although not that different these days, was the middle section where he just went after Democrats. And you were saying this defied people's expectations, I suppose, because they believed that he was going to say the same type of things about Supreme Court justices as he'd said just the other week. Right. People thought he was gonna say again, oh, their families should be ashamed of them and they betrayed the Constitution. And instead he was more measured, but he wasn't measured when it came to talking about the Democrats. And in fact, it was quite new. I thought the way to which he. He managed to sort of manipulate the event into a performance and spectacle with all these made for clipping for, I don't know, maybe TikTok but TV moments. He said outright, the great thing about the State of the Union is that you get to see what your representatives really think. And then he pulled off this whole stunt where he said, all right, stand up and clap if you believe. And he went down this list of things that they're supposed to believe. And then when they didn't stand up, he said they should be ashamed of themselves. And he sort of baited a confrontation with Ilhan Omar where she yelled back at him and yelled at her. And then he said, these people are crazy. And so it was just very. It was so. It was like, read your Marshall McLuhan. This guy's engineering a pseudo event. It was just interesting to see the way that he was playing what is, you know, supposed to be this fairly state addressed to Congress as a spectacle to then be sort of reshared later. So to. To me, that was really striking. I don't want to go on too long on the issues. I think he said less on Iran than people were expecting him to say, and I'm sure that you guys can all talk more about that. But he certainly didn't articulate a reason for us to be amassing as much firepower in the Middle east as we are there. He said that we want them to say the secret words will never have a nuclear weapon, which I believe they have in fact said. But the question is, are they doing things that suggest that that's not true? But he didn't explain how bombing Iran would help with that or anything like that. And you know, Chuck Schumer and others had said it's on him to make the case to the American people. He didn't make that case. And really he didn't talk about Iran at length. He also, I thought it was quite interesting, mentioned China only in the context of, I think, making fun of their military technology. When he was talking about he was a war supporting a member of the military who was involved in the Maduro operation. And he was talking about how he'd been in this helicopter. He kind of made fun of Chinese military technology there, but he didn't directly mention China. That I believe, is the first time in more than 10 years that a State of the Union hasn't directly mentioned China. And then on the sort of domestic politics again, I'm already going on too long, so I'll stop after this. He is obviously Contending with the affordability question, which he really doesn't like to talk about. And he basically told Americans everything's really good, there's nothing to worry about. That goes back to the exaggerations stuff that I was talking about at the beginning of this long rambling answer. But that was interesting to me also because it reminded me of exactly what Joe Biden was struggling with during his term, which was people wanted him to acknowledge the pain and suffering of the American people. But he, he thought that that wasn't a reflection of reality and he sort of refused to do it. And that was a big critique of him. And Trump is doing the same thing. He does not want to say I know anybody's having trouble.
- [65:58]
Scott R. Anderson
Yeah, I mean I think that you hit on a lot of the main points that jumped at me. I think that, you know, it was an interesting speech. I think it was kind of what you expect from Trump. Except for me, that Supreme Court point, maybe the Iran point. I don't think he was ever going to announce Iran strike. I thought that made no sense whatsoever. I don't know why anybody thought that was going to be the case. It is interesting because his approach to handling the economic profile, the economic or portfolio I should say, which seems to be the main pressure point, is to paint a super rose colored glass is to say we've already done this. So much for you. Why don't you appreciate it? Prices are already dropped on xyz. I haven't looked at a close check to see if that's actually true for people. But it's an interesting message that does seem like it's a little bit of a risky one to pursue in when you know, people are dissatisfied. And I think it's hard to dissuade people that they shouldn't be dissatisfied. That's a little bit of a trap. The binding is administration fell into in trying to discuss inflation, other issues as well. And they seem to be kind of tracing into maybe a similar approach. Tyler, what about you? What jumped out at you about and stood out to you of particular interest about the State of the Union that is worth mentioning?
- [67:00]
Tyler McBrien
Well, first I'll say what sticks out to me every year is that I wish we had something like prime minister's questions or something where Congress could actually not just be an audience and register.
- [67:13]
Scott R. Anderson
A few people tried.
- [67:14]
Molly Roberts
Yeah, that was silly of them because they're not on mic so it's, they're yelling and he looks powerful and they just look like they're heckling and you know, it harks Back to you lie. And it's just, it's not effective for them.
- [67:29]
Tyler McBrien
Yeah, they can either clap or not clap sassily or whatever. But I, I also was struck by his lack of mention of China, not just because it's in every single speech, you know, past 10 years, but because of it being a very recent and very visible weak point among the left and the Democrats. I mean, there was the Alexandria Ocasio Cortez was dinged at the Munich Security Conference for flubbing an answer on Taiwan, and I believe, also just not really having a strategy vis a vis China. And so it seemed like an opening there, which Trump didn't take. And I'm kind of wondering, does anyone have a strategy on China, left or right? And so I think that was a very conspicuous absence for many, many reasons, not just because it's the usual fare.
- [68:17]
Scott R. Anderson
Well, and I would say the other thing that really jumped me as a big absence is he really did not talk much about Gaza at all. He had a couple lines in there which were very poorly framed, basically about Kushner and Witkoff negotiating, getting past some agreements, something about the number of bodies being hand over. 27, then there's 28. He was digging. Typical Trump sort of ramble that did not amount to anything when Gaza is something that he has actually gotten bipartisan praise for as an accomplishment. But I'm wondering whether it's seen as just too politically freighted because it is unpopular in certain quarters of both the Republican and the Democratic Party. Strong pro Israel, courts have a lot of concerns about it. It's also something that is a hard job to maintain. But bear in mind, we're coming off a period where the President Trump was just trumpeting his Board of Peace and the Board of Peace, primarily established, to talk about and handle Gaza. And yet really, that issue did not make much of appearance at all, nor did the Board of Peace, really, although you kind of got that as a kind of context for a couple of his talks about me as the peacemaker. Paul, I'm kind of curious about your sense of looking at these things. Where do you think from your. And this is not a legal question, so it's okay to recuse yourself, but I'll put you in the shoes as someone who I know has watched these things in the past and has been close to the policy realm and political realm for a good chunk of your career, where did the State of the Union succeed and where did it fall short? What should presidents be trying to do at this particular moment? I will say I looked what at at a bunch of the kind of snap polls that a lot of the networks do. Newspapers come during the State of the Union, and historically this one performed very badly across at least three different networks that I saw. Now, I don't know what to make of that. And there are snap polls. It's fairly small sampling. I think there's a lot of chaff in there. But that was kind of the broad trend is that the positive receipt was not as high as similarly situated speeches by Trump or by prior presidents. So I'm kind of curious if you fell short like how and what is the better way to use these sorts of moments.
- [70:14]
Paul Stephan
So let me give you a very big picture answer, Scott. I mean, I think in the world since the ending of the three legacy incumbent networks world, in a world where there are many more claims on people's mind space, a lot of Americans vote with their channel changer and they vote against the State of the Union address. I think it tends to have less and less significance, except for people whose jobs or passions are about what the president is saying. So I'm not sure what presidents can do to help themselves very much. They can harm themselves by saying really crazy things and touching people off. But, but I will admit I did not watch it last night. I had other things I had to do. But looking at the press today, my first takeaway is he did nothing especially outrageous. He bullied the Democrats, which if he senses weakness, he will do. And it's kind of interesting that he perceives the Democrats so weak at the moment. Put aside whether that's true or not.
- [71:27]
Molly Roberts
Not.
- [71:28]
Paul Stephan
And something I wonder about. It's been true for most of my adult life that lame duck presidents shift to international relations. They have less and less control. Of course, they never really have a lot of control over the domestic economy, but they take credit for the things that go well and they try to dodge culpability for things that don't do well. But I've seen it over and over again where rather than trying to push domestic buttons, people feel the presidents feel they can have some leverage in doing international stuff. They can meet with leaders and believe that has some result. And I have a sense he's moving in that direction. And my prediction will be more and more his hallmark addresses, including the State of the Nation address, will be more more about foreign stuff where it can be about me, and less about the economy, which is about you.
- [72:28]
Scott R. Anderson
That's really, I think that's actually really astute. I mean, that's actually maybe part of what surprised me about this is that foreign policy never features very prominently. It's always like, I feel like the 60 to 80% mark, if you go down the transcript, that's usually the zone. Foreign policy gets talked about. But for Trump, so much of his energy and so much of his discussion, and when he talks about his own legacy is this peace builder image. He's talked about himself as, right, there's a terrorist chunk, there's a US Economy chunk, yada. But maybe I'm overly sensitive to it because I follow these issues, but it comes out so much in so much of his remarks, so much of his efforts, so much of the higher profile things he's done and he's got things to talk about there. But it seems like maybe his political team was like, no, we need to talk about the economy, we need to talk about culture war issues. We need to take some hits on the Democrats because we need to get other Republicans who can't take credit for all the foreign policy stuff and may not even agree with it up for November. That's my guess. But he has stuff that he wants to talk about on the foreign policy front. He does it all the time. I suspect you're right. We're gonna see more of that before we break. I wanna turn to the Democratic response because I thought it was actually really interesting. So I watched all these this morning. I was traveling last night, so I caught up. So watching an hour and 47 minutes day of the Union on double time, by the way, is a particularly intense experience. I don't necessarily recommend. And Governor Spamberger gave this response that I thought was interesting and I actually thought fairly effective. I'm curious if you all felt the same way, which it didn't do exactly what I expected. I think usually you see these things where the usual response of the minority or the party out of power is, okay, we put forward one of our up and comers. They talk about themselves and their own biography and their own political success and how that reflects the intention of the broader Democrats. She definitely did that. Then you hit them on the economy, you hit them on domestic kind of like kitchen table issues, and you just drill down on those pretty aggressively. Spanberger definitely did all that. And that's the front loaded stuff. And then she spent the back half of her speech more or less really hitting Trump on a whole range of very specific things that I think a lot of the conventional political wisdom sometimes says is a distraction. She hit him on renaming buildings after yourself. Personal corruption. Epstein files use of violence against folks in Minnesota quite expressly she did also spend a lot of fair time on valorizing the response of the people in Minnesota pretty directly and expressly. All of which struck me as like a little bit of a political swing than you sometimes see in these. And for me, at least struck me as persuasive or at least hitting Trump on a couple of vulnerabilities with key constituencies, or potentially key constituencies, that he's unique versus your average Republican politician this moment. But did you all have a different reaction to that? I mean, did you all find it more or less compelling? And I'm particularly wondering whether you guys saw it, because one challenge that they had is that there were all of these responses to the State of the Union from a variety of progressive Democratic other groups kind of not a fan of the administration. And so there wasn't as much unified sort of media attention. I actually don't know even which networks carried or where people, which other outlets carried their formal response versus other sorts of responses. Did you all catch it and did you have any reactions to it?
- [75:34]
Molly Roberts
Yeah, I mean, I also think if you do 147 minute long state of the Union, you do a better job exhausting people too much.
- [75:40]
Scott R. Anderson
That is true, yes. That might not be an actual.
- [75:44]
Molly Roberts
Yeah, right. Lots of reasons for it. Right. But I cannot say that after that, the first thing I wanted to do was go watch even one response, much less several. I did take a look at it today, but I definitely did not look at it last night. And I like all the stuff she did at the end. I don't have any great basis in polling for any of this, but one thing that kind of frustrates me, that I feel like the sort of Democratic strategist class often says is we need to talk about only affordability. We need to talk about healthcare. We need to talk about all these things that Americans want that have to do with us building stuff. And I'm sure that's true. It's great to talk about that, and it's great to have substantive policies. But I feel not just from the perspective of politics, but also from the perspective of what people should care about, that all the things that she mentioned that she hit Trump on are important. And so it was nice to me to see her do that, despite my. My understanding that generally that's not what kind of the organizational arms of the Democratic campaign apparatus want people to do. I think they should be talking about the Epstein files. I think they should be talking about how corrupt Trump is, particularly after a State in the Union in which he mentioned corruption. Plenty he was knocking Nancy Pelosi when he mentioned the Insider Trading Act. He was talking about the, the blaming Somalis for corruption. He mentioned corruption a lot. But this is the most, well, the most corrupt president in American history. People could challenge me on that. This is a very corrupt president. And I could give lots of concrete examples. And so I liked it. But again, I can see a lot of people disagreeing with me and bringing up polls and focus groups and telling me that I just like it because of who I am and that that's not what your average American likes.
- [77:39]
Scott R. Anderson
Yeah. Well, that brings us to the end of this week's episode as we are just about out of time, but this would not be rational security if we did not leave you with some object lessons to ponder over in the week to come. Tyler, what did you bring for us this week?
- [77:52]
Tyler McBrien
So I'm going to give a classic podcast recommendation while I'm on a podcast. This is a podcast called Otherworld. I'm curious if any of you have heard of it, but I was lucky enough to be. I'll be a guest on the, on a forthcoming episode. That's not why I'm recommending it, but I, it gave me a chance to really dig into the archive. It's a podcast about paranormal experiences of which I'm usually not a big believer. But he, the host, really, his name is Jack Wagner. He really takes people's stories seriously and kind of, you know, meets them where they're at and goes down the rabbit hole with them a bit. And if you don't get revelations about actual paranormal activity, you get, you know, revelations about the people who are who think have experienced it or, you know, in telling it. It's just really well done. It's just a really, really thoughtful, entertaining podcast. And they also have an incredible merch shop online. So if you, if you, if you find yourself liking the podcast and then this is not a sponsored, you know, plea right here, they actually just genuinely have great hats and shirts and things. So it's called Otherworld.
- [78:58]
Scott R. Anderson
Wonderful. What are you, what are you going to be on the podcast discussing? Can you share with us or is it not it public?
- [79:03]
Tyler McBrien
I will be here. I am on a podcast talking about this podcast about another podcast that I'm making about the Georgia Guidestones that's coming out next month. So I'll be sure to talk about that more. It's called who Blew up the Guidestones? And it'll be out around mid March. So that's what I spoke about, which has some paranormal overlap.
- [79:22]
Scott R. Anderson
We are all very excited about it. We've been following Tyler's work on this project with our friends at Goat Rodeo for a long time. So we're excited to see that debut in the next years of couple. Couple weeks. Molly, what did you bring for us for an object lesson this week?
- [79:33]
Molly Roberts
Well, right now I'm looking at the Otherworld merch, and there are some fascinating looking plushies. Which brings me to my object lesson, which is purely silly, but I keep trying to make it an actual object. So I don't know if anyone is familiar with Squishables. It's similar to pillow pets, like big, squishy, fuzzy.
- [79:55]
Scott R. Anderson
I may not be familiar with pillow pets. It's horrifying.
- [79:57]
Molly Roberts
Very large. Okay, yeah, kids like them. Generally, they're for kids. But what I want to do is I want to recommend the Large Squishable for dogs. For large dogs. This is my dog's Cthulhu.
- [80:11]
Scott R. Anderson
I mean, that's great.
- [80:12]
Molly Roberts
And it's an HP Lovecraft character made into Squishable form. He is obsessed with this thing. He played with it more than he'll play with anything else. And also, I may think it's alive. He often grooms it and stuff like that. But they're very good, I will say. Once I got a letter from Squishable telling me that they'd had a data breach and that my data was at risk because of Squishable. So that's one thing to warn against, but it's been worth it for us. We get a new Cthulhu every time he tears it up.
- [80:41]
Scott R. Anderson
Oh, I love that. I've long wanted and envied the Cthulhu knit caps that people have that are kind of like the Bataclava, but it's got all the octopus tentacles in front of your mouth. I thought about buying one of those for this last no staff, and then I couldn't quite get it from Amazon in time, sadly. Well, that's a wonderful recommendation for all the Lovecraftian pups in our lives. For my object lesson, I will say, as I mentioned, I think at the top, I just returned from lovely city of Charlottesville being hosted by Paul and some of his colleagues and the wonderful students at the Virginia Journal of International Law. It was a great visit, but I, as I also mentioned, spent a lot of time in train stations on delayed trains and did not make it in time for the dinner on the first night. When I arrived Monday night, I got in very late and I was both, you know, a little disappointed, bummed and Also just felt like I deserved a little bit of a reward for myself before I went to bed. Having finally made the hours long trek down from D.C. so I parked myself in the hotel bar at the Hotel Kimpton, the Forum, a new hotel that was quite nice that they kindly put us up in and had a drink that was excellent and I wandered back in and it's an old classic. It's a drink that I love. This is one of my favorite drinks, the Vocare. Nothing original there, right? Classic blend of rye, cognac, sweet vermouth, Benedictine bitters, stuff like that. Classic New Orleans style cocktail. But what they did there that was really good is instead of cognac, they subbed in Laird's Apple brandy. Very cheap generally. Honestly, apple brandy, popular mixer. I have to say it really, really was good because I love a Vocare, but it's definitely a heavy drink and it's definitely a very spirit forward drink. I know sometimes my wife and some friends do not find a little too spirit forward for them. And while I like spirit forward drinks, sometimes I find it a little spoof spirit forward for me too, honestly. But this was a perfect balance and I really toned it down a little bit, gave it a little bit of a sweet edge and I loved it. I think it was great. I also served it ice cold, which I think was a key to it. So if you are a cocktail artist at home or go to a bar and him to make it, to give it a try with this, I don't know the exact ratio, whether he adjusted it. I'm going to play with a little bit at home and if I find out, I'll come back and report back. It's a great little twist on a classic. So I'm working that in my repertoire. I thought I would share it here as well. I can't remember that in my bartender. He's a very nice guy, but great job whatever your name is. And with that, Paul, bring us home as our guest. What do you bring for us for an object lesson today?
- [82:48]
Paul Stephan
Three quick things, Scott. The first, inspired by what you just said. So Peter Sugerman's posting on cocktails. He's Megan McArdle's husband. He's Mr. Megan McArdle and he loved to swap out cognac with Baird's apple brandy. I think it's a great move and he's a great writer. It's very funny.
- [83:10]
Scott R. Anderson
Oh, check this out.
- [83:12]
Paul Stephan
Podcasts. This is very nerdy. You have to be a hardcore Russian guy. But Mark Gayati is a British guy. Who does something something called In Moscow Shadow. The most recent show was comparing Ivan Strachny's invasion of Kazan to Putin's invasion of Ukraine, showing how much Ivan got right and Putin got wrong. Really good stuff. And then finally, Dan Wang's Breakneck. It's the only serious thing, but I think it's the best book on China I've seen in the last three or four years. His focus, his opposition between Chinese engineering engineering and American lawyering. You know, he hangs out at Yale Law School, although he doesn't have a law degree. It's very insightful, very valuable. I recommend it highly. All three.
- [84:01]
Molly Roberts
I second all of those. The third I've only listened to him on podcasts, but I need to read the book. But the first two I can actually second with full knowledge. That is a banger series of recommendations.
- [84:12]
Scott R. Anderson
There you go. Yeah, four to four from Paul. I will say I have had you were, I think, maybe the third person to recommend this book to me in the last two weeks. So obviously it needs to go on my list and I'm probably going to order it the moment we signed off. But before then, 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 lawfaremedia.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. While you're at it, be sure to follow Lawfare on social media. Wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening. And be sure to become a material supporter of Lawfare on Patreon for an ad free version of this podcast, among other special benefits. For more information, visit law firmedia.org support our audio engineer and producer this week was Noam Osband of Go Rodeo. Under Music, as always, was performed by Sophia Yan and we are once again edited by the wonderful Jen Patcha. On behalf of my guests Paul, Molly and Tyler, I am Scott R. Anders and we will talk to you next week. Until then, goodbye. Want to change the efficiency game? AI it automate tedious tasks to spend more time on the future transform the everyday with Siemens.