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- [00:00]
Ad Read Host
You hired a new employee. Time to get to work, right? Not quite. First comes HR software for payroll and benefits. Then IT tools to manage devices and app access and finance software for expenses. Oh, and none of these softwares work together. That's sad. Software as a disservice. Rippling lets you run hr, IT and finance on one unified platform with automations that save time and connect your workflows for a limited time. You can get six months of rippling free when you sign up at rippling.com podcast. That's RIP P-L-I-N-.com podcast. Terms and conditions apply. Did I talk too much? Can't I just let it go?
- [00:42]
Scott R. Anderson
I wish I would stop.
- [00:43]
Ad Read Host
Thank you so much.
- [00:45]
Scott R. Anderson
Take a breath. You're not alone. Counseling helps you sort through the noise with qualified professionals. Get matched with a therapist online based on your unique needs. And get help with everyday struggles like anxiety or managing tough emotions. Visit betterhelp.com randompodcast for 10% off your first month of online therapy and let life feel better. Nastya, has been a while since we've had you on the podcast. Reuniting lawfarers and rap Security's kind of global, global reach. I missed you too. But you are not just. I understand. You've not just been. You're not just our Kyiv correspondent at the moment. You've been doing a little globetrotting yourself. Where are you coming back from?
- [01:29]
Anastasia Lapatana
I was in Norway around a week ago.
- [01:32]
Scott R. Anderson
So jealous.
- [01:33]
Anastasia Lapatana
Oslo. It was so good. I love Norway. I love Norwegians. And I have a. Actually good that you brought that up. I have a nice little sweet piece of gossip for you. So I was hanging out with some officials from the Norwegian government after some of the more serious meetings we had at the parliament and such, and I ran into one senior official who said that he was a big fan of rational security and a loyal listener. So, you know, that was very nice to hear.
- [02:06]
Scott R. Anderson
Oh, yeah, there we go.
- [02:07]
Anastasia Lapatana
Country of Norway. So I was thinking of you the entire time, Scott.
- [02:11]
Scott R. Anderson
Hey, I'll take whatever you can get. You know, I'm a big. I'm a big Norway fan, having never been, but I love. I love feeling cozy. I love chunky sweaters. I love angular architecture. So I'm all for wood natural patterns, but it's kind of in a modern, sort of unnatural take. That's what I'm all about, man.
- [02:30]
Lauren Voss
Get.
- [02:30]
Scott R. Anderson
Get good with it.
- [02:31]
Anastasia Lapatana
The style and fashion choices just make me want to cry in the best way.
- [02:35]
Scott R. Anderson
Unbelievable. And I could maybe even get talked into actually now That's a lie. I will never try pickled fish, but. But I'm happy to watch other people eat it and that's fine.
- [02:43]
Lauren Voss
I tried whale.
- [02:45]
Scott R. Anderson
Whoa.
- [02:46]
Anastasia Lapatana
Yeah.
- [02:46]
Scott R. Anderson
How was it?
- [02:47]
Anastasia Lapatana
I think I'm yet to try Moose. Is it? There is some other very weird local stock that's just normal for them, like a cow in Ukraine, but for me it's way too exotic. But yeah, well, it just tastes like chicken liver, which I used to eat a lot as a kid. Not something I'm gonna particularly be grabbing, you know, every other lunch. But not, not, not disgusting.
- [03:16]
Scott R. Anderson
Hello everyone and welcome back to Rational Security, the show where we invite you to join members of the Lawfare team as we try to make sense of the week's big national security news headlines. I've got an all star cast back with me. Joining us again for the first time in a good while, our resident. Well, not so resident, resident somewhere else, Ukraine fellow Anastasia Lapatana. Nastya. So good to have you back on the podcast. It's been too long. I missed your face and your voice.
- [03:41]
Anastasia Lapatana
Hi, Scott. I missed you guys as well. Happy to be here.
- [03:44]
Scott R. Anderson
Wonderful, wonderful. And joining us as well from another not quite so far flung, but far enough flung out of our usual environ location, we also have Lawfare public interest fellow Lauren Voss. Lauren, thank you for joining us today.
- [03:56]
Lauren Voss
Happy to be here.
- [03:57]
Scott R. Anderson
So I take it that is not your home or kind of generic fashion paneling behind you on the wall in the video. In fact, you may be in a hotel or Airbnb of some sort. It is like the most Airbnb decorations I've ever seen. It's kind of great.
- [04:11]
Lauren Voss
I may be in an Airbnb in New York City. If this was my house, there would actually probably be nothing on the walls still yet.
- [04:19]
Scott R. Anderson
There'd be children's toys and like smear children's food everywhere. Because that's what my house looks like. And joining us as well is Lawfarer's most recent addition in the senior editor department, Senior editor Eric Columbus. Eric, thank you for coming back on the podcast.
- [04:32]
Eric Columbus
Delighted to be back, Scott.
- [04:34]
Scott R. Anderson
You have a very, very organic and natural looking background environments and decorations on your wall. Not at all. Airbnb like it looks very real. Congratulations.
- [04:41]
Eric Columbus
That is art painted several years ago by my kids and my head is currently blocking. But no more. A small painting that my dog.
- [04:52]
Scott R. Anderson
Whoa. That is. That is genuinely impressive.
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Ad Read Host 2
I don't know.
- [04:55]
Eric Columbus
You have Eric the blue and one my dog Sam, when he was a puppy and went to doggy daycare. They had him do that.
- [05:06]
Scott R. Anderson
Oh, I love it. I love it. I gotta get this doggy daycare's number. That's a great idea. Well, I am thrilled to have all three of you on the episode this week. There's been a lot happening in the news. Of course, we're not gonna talk about that one story that is occupying Lawfare's time and getting a lot of traffic right now with one of our colleagues, Anna. People can ch on lawfirm media.org but we've got lots of other things happening in the news this week. We are going to talk about our first topic for the day, visiting concessions. President Trump once again turned his focus to the conflict in Ukraine, announcing last week that he and Russian President Vladimir Putin would be meeting to discuss the conflict in Budapest, though it's not clear Putin has agreed or when exactly this might happen. This occurred just days before a planned visit to the White House by Ukrainian President Volodymyr Zelensky, where Trump reportedly pressured him to make territorial concessions requested by Putin in exchange for an end to the conflict and failed to respond to affirmatively to his request for Tomahawk missiles and US Security commitments. Is this a real shift in the US Position? More of the same. What might it mean for the broader conflict either way? Topic 2 Posse Kamaskotas. This is a terrible title. I could not come up with anything better. I'm so sorry, guys. We've talked about this a lot. I'm just running out of ideas at this point. After months of litigation in the lower courts, the Trump administration has finally gone to the Supreme Court regarding the legality of its domestic military deployments, seeking a stay on an injunction on its planned deployment to Chicago that was recently left in place by the 7th Circu Court of Appeals. How big a decision point is this in terms of the legal authorities around domestic military deployments? And how does the court seem poised to rule to the extent we can tell? And topic three, material contort for terrorism. Just weeks after designated antifa, a domestic terrorism organization, quote unquote, the Trump administration has brought its first set of related criminal charges relating to a July event at a Texas immigration detention facility that left one police officer shot in the neck. The indictment includes charges under the material support for terrorism statute, but probably not the one you're thinking of. How much does the indictment stretch the usual use of these statutes? And what does it tell us about the Trump administration's anti antifa campaign? So, for our first topic, Nastya, we are of course going to come to you in Kyiv it's been an eventful week or two. I feel like every month or two we have this like two week spurts where there's a ton happening, where obviously the President's attention gets turned back to Ukraine. Lots of people who whisper in his ear about Ukraine in ways that are probably contrary to each other try and capture him and push him in different, different directions, whether it's Vladimir Putin, whether it's JD V. Whether it's Lindsey Graham and other people who generally are more supportive of US Support for Ukraine. I think it's fair to say, obviously different people are whispering in his ears. And it's always a little bit hard to tell where exactly Trump is going to come out. For the last few months, it seems like the Trump administration has been somewhat surprisingly and to a degree of relief, I think, for supporters of Ukraine, more or less in Ukraine's corner, critical of Vladimir Putin, willing to provide additional degrees of support, willing to support a lot of Ukrainian efforts, suggesting at various points maybe Ukraine could even take back Ukrainian territory through the course of the conflict. Although I don't think it ever went quite, quite so far as to say he was supporting that as the eventual outcome. But now we're seeing what might be a little bit of a waffle or a little bit of a turn in the other direction, where it comes out that after this phone call with Vladimir Putin, President Trump is reported, and these are just media reports, I don't think we've seen official confirmation of this from either government, but is reported to have put pressure on President Zelensky to consider making certain territorial concessions, specifically in regard to the Donbas, in kind of exchange for certain territory in Donbas, for other territory that Russia currently controls or is under, under at least a degree of Russian threat, and that this would be some sort of territorial carve out that would help bring about a ceasefire and potentially a permanent end to the conflict. I kind of am curious first how this sort of news generally gets received among Ukrainians. I think it is a remarkable and often underappreciated aspect that you guys, that you have really brought to the fore in our prior conversations, the extent to which Ukrainians were and ended the Biden administration. Very, very skeptical and I think a little critical of Biden and many people around him, even though I think from most American perspectives they were very strong boosters of Ukraine.
- [09:06]
Anastasia Lapatana
I think a little critical doesn't do that justice.
- [09:09]
Scott R. Anderson
More than a little critical.
- [09:10]
Anastasia Lapatana
It was, it was rough, yeah.
- [09:11]
Scott R. Anderson
Hostile, I think it's fair to say, with a lot of optimism for President Trump, who to American audiences has always seemed like very much in the Trump in the Ukraine skeptic camp, although the last few months his policy has not leaned in that direction, which is a little surprising. So talk to us about how these fluctuations are viewed in Ukraine and how this particular latest kind of wave of these new revelations, which, again, are all based on media reports, we don't 100% know what happened. And President Zelensky said he had a positive chat, if anything, with Trump, although he didn't get into a lot of details. Talk to us about how it's being received, perceived and received kind of on the Ukrainian street.
- [09:46]
Anastasia Lapatana
So just for background, like a minute ago, an air raid went off in Kyiv and there is now a risk of ballistics, according to the reports that I'm reading. And it's still going on in the background. I can hear it. So, you know, that should tell you everything you need to know about how much President Putin actually wants to make a deal. But apart from that, yes, we've seen a lot of these, I think, pretty senseless cycles where Trump goes from being in Ukraine's camp to being in Putin's camp, from pressuring Zelensky at one point many months ago, cutting the aid to Ukraine, intelligence sharing to Ukraine for a day, completely, you know, as a means to exert pressure over the Ukrainian government. And then he goes in and make these rhetorical, usually rhetorical only, threats towards Russia. And I think for a few months in the beginning of the second Trump administration, people treat it more seriously than they treat it now. I think right now, everyone in Ukraine is so just tired of trying to figure out what the hell is going on. I talked to some people in the Ukrainian parliament who say we have no idea what the strategy is, what the policy is, who's even briefing this guy. There's so much chaos. And the things that he says are contradicting each other very often. Just straight out false statements about the state of the war or something about Ukraine or the policy that a lot of people in Ukraine are just like. Until we see those Tomahawks flying towards Russia and hitting targets, or until we see a new package being passed, we're not believing any of those truth social posts because we've been here before. And it's funny because every time it happens, you see these headlines sort of unpacking and talking to sources about exactly what it is that the Ukrainian government did to nudge Trump in their direction. And it happens every single time. And then he nudges back again and people Just started making fun of that, like, how often are we going to.
- [12:00]
Lauren Voss
Be falling for this?
- [12:01]
Anastasia Lapatana
And so this is exactly what happened in the past few weeks as well, where there was some really strong rhetoric, I think the strongest one being this long truth social post that Trump did in which he alleged that Russia was maybe a paper tiger that is not as strong as Putin, you know, says it is, and that potentially with enough Western aid, Ukraine could liberate all of its territory, which we haven't heard that in a while from any official, including from Ukrainian officials. Like nobody is really talking about that anymore. It's just not realistic in the short term or medium term at all. And Ukraine may even go further than that, which, you know, understand that. However you will. Of course, Ukrainians had a lot of fun sort of making memes out of that and poking into it and saying how we're going to take back Rostov or some other or Sochi, because that was always Ukrainian historical territory and, you know, stuff like that. But the point is that none of that, you know, in my subjective opinion, none of that ultimately matters because then it took one phone call from Moscow to change Trump's approach completely. And so on Monday, last Monday, both Kyiv and Washington confirmed that there was going to be a meeting between President Trump and President Zelensky the following Friday. And the hopes were up because there was all of this rhetoric and there was all of this buzz about Tomahawk missiles, which are these long range, American made, powerful missiles that Ukraine has been asking for and wants to use in its deep strike campaign against Russia and the ongoing campaign against Russian energy targets. And so the Ukrainian delegation was hoping that they're gonna walk out of that meeting with a pledge to supply the Tomahawks. And then on Thursday, one day, this was like less than 24 hours before the meeting was supposed to take place, Trump announces that he had a phone call with Putin and that essentially he said that they were planning a meeting in Budapest. They were planning a meeting of their lower level delegations. So like the State Department and the MFA in Russia and then also a leader meeting, like a full on summit. And that made a lot of people worry because, I mean, it was obvious what happened there. Like, of course Putin was trying to, and we wouldn't know who called who. But regardless, Putin was trying to sabotage the Ukrainian summit the following day. And that's exactly what happened. We don't know exactly what was said because neither side is talking about it publicly. But from all of the reporting that we've seen and there has been enough reporting in various outlets that the meeting on Friday between Zelenskyy and Trump was emotional, was quite difficult. Voices were raised, and one report that I saw suggested that Trump was pressuring Zelenskyy to give up Donbass, which is the region in eastern Ukraine that encompasses Donetsk and Luhansk Oblast, which is the Ukrainian word for region. And then bas is sort of then the name for that broader region. And so the entirety of Luhansk Oblast basically is occupied by Russia, and the majority of Donetsk Oblast, but not all of it is occupied by Russia right now. And the Russ Russians for many, many months have been demanding that Ukraine just gives up that region voluntarily, that Ukraine just withdraws its forces, which is something that maybe I'll be proven wrong at some point, but I think it's virtually impossible that Ukraine could agree to that for a variety of reasons. The area that is at the core of that discussion, giving Abdulbas, not giving up Donbass, that part of Donetsk oblast that's still under Ukrainian control, includes several really big cities where millions of people lived before the war. I'm not sure what the population is now because, of course, many have fled because it's become very dangerous. But these are large populated cities, which means that they're easy or not easy, but they're easier to defend than, say, an open field. So it's sort of a natural urban fortification for the Ukrainian army. Very advantageous. Then there's also around those cities, a lot of fortifications that Ukraine has been building back since 2014, when Russia first invaded Donbass. So there is a lot of these very, very extensive fortifications that are very important for Ukraine's defense of that entire part of the front line, even going down to the south and also more in the north as well. All that is to say that Ukraine would be giving up extremely, extremely important chunk of territory, not because it has hundreds of thousands of Ukrainian people living there. So what do you do about that? Do you put people on buses and evacuate them? How does anyone imagine that would go? Is a good question. But then also, giving that highly defensible and highly defended chunk of land to Russia just opens up way for Russia to reinvade from a very, very advantageous position going forward. So if Ukraine just cedes that territory, Russia can use all of those fortifications to invade again. This is some of the concrete reasons why, on top of, how are you going to tell the Ukrainian army to just walk away? The emotion behind that and the symbolism behind it is just completely surreal for me to imagine. And so supposedly, Trump was pressuring Zelensky to do exactly that in the meeting, because that's what Putin wants. There were also some reporting to suggest that Putin said that he was willing to evacuate Russian forces from Zaporizhzhia and Kherson regions, which are in the south. Those are the other two regions where some parts of them are occupied, some are not, in exchange of Ukraine giving up the Donbas. So it would be this kind of land swap, right? Like Russia would liberate or leave a part of the territory it currently occupies in the south, and Ukraine would give up voluntarily part of the territory it doesn't control. It does control in the east. So the big problem with all of these meetings and the reporting around it is that you never know what was actually said. And we've seen before, around the Alaska summit, for example, or after meetings that Wykoff would have in Moscow, where Witkoff would completely misunderstand what was said, and then he would say that certain things were agreed on, that Russians made these incredible concessions and there's so much progress. And then Peskov, the spokesperson for the Kremlin or Putin or anyone else would come out and say, that's just not right. That's ridiculous. Russia never agreed to it. So it's very complicated to really understand whether the Russian negotiation position moved here or not, because there's a lot of wishful thinking on the part of the Trump administration. There's a lot of just misunderstanding of the context and the Russian strategic thinking and stuff like that. So if you ask me, I think nothing fundamentally changed. I don't think Russians moved on their position. I don't think this means any meaningful change in the American policy. It's just another one of those cycles where Trump thinks he can do something, but actually he can.
- [19:30]
Scott R. Anderson
That's so interesting and incredibly useful. I have views on this, about what Trump is up to, but I want to circle before I give my take on this. Lauren and Eric as well. Let me turn to you guys. Lauren, I'll turn to you first. What is your perspective of this? What explains Trump's patterns on this? We've seen this a few times now. Trump has a certain trajectory. Then he talks to somebody, usually Putin. Then he says, well, wobble, wobble, wobble. Maybe I can get somebody to budge on this. Maybe we're not as committed to this. Okay, let's all try and meet a little bit in the middle. I think there is a logic behind it, kind of maybe more of an instinct behind it that you see in other parts of his foreign Policy, but, you know, that has different relevance and merits and cons in different contexts. But first, let me ask you, Lauren, what do you make sense of this? Is this a continuation of a trend? Is this a change meaningfully? What kind of explains this sort of behavior?
- [20:24]
Lauren Voss
Yeah, I mean, the first thing I would say is not just the Trump administration, but the previous administration, too. Like, I would not say that we've had a coherent strategy on Ukraine. Right. And so that is part of the overall problem. I mean, the original goal was to protect NATO. Right. And then Ukraine was like a way to. Well, we helped them some, not too much, not too little, but it was about NATO. And so that, like, incoherency, I think, has just continued into the Trump administration. I think this isn't really a change for Trump. I think the difference is more just now about maybe being a little bit impatient with what's happening. There's been some theories that after the success of Gaza, Israel, he is impatient and wants to end this conflict as well.
- [21:17]
Scott R. Anderson
He's only got one more year for that award cycle. You know, you gotta get on these things early. It's like, you gotta get in time for consideration. He just missed it last time. It's like releasing like, an Oscar contender in, like, was it April? Whenever the cutoff is, it's just bad timing.
- [21:30]
Lauren Voss
So, yeah, so he's feeling that pressure. So I, I see it more as, like, that kind of impatience leading to this. And also just, like, is a feeling that Ukraine doesn't necessarily want the war to end. Right. And I think he feels that way because he doesn't understand why Ukraine has pushed back on concepts like giving up the Donbas region. Right. Like, and it's not clear also that that is something he meant permanently. Right. Like, he was like, o, we could freeze the battle lines and they can argue about it later. But that's not really like, a peace plan. Right. Like, that is at best, you know, a freezing of the conflict for a short period of time. And I think he. Whenever he hears pushback on ideas for some reason from Ukraine, it's kind of like this mentality of, you know, they don't want peace, they don't want to come to a deal. But I think I was. So I was looking this up. So donbas region, over 20,000 square miles. Right. And then I compared that to the total size of Ukraine. It's 9% of Ukrainian territory. So according to ChatGPT, that would be like the US giving up Texas and Oklahoma. Right.
- [22:49]
Anastasia Lapatana
I love that you brought that up. Like, yeah, well, and it's worth mentioning that most of that. Or not most, but a big part of that territory that you're talking about was already occupied back in 2014, so. Yeah, but. But it's still not a small amount of territory.
- [23:05]
Lauren Voss
Yeah, yeah, but I mean, it was. It was being fought for in 2014. Right. I was there in, like, 2016 along that line. And, like, you know, the Ukrainians have been fighting since then for that territory. And so I think we forget what we're asking and what that actually means to Ukrainians. And so the president has this feeling that, like, they're not. They're not compromising enough, they're not being reasonable enough. And I think you see that trend through all of the different things that he brings up. So I don't really see this as something different. The only thing I see different is maybe he feels more pressure to want this faster, and so you're seeing his impatience from that.
- [23:43]
Scott R. Anderson
Eric, what about you? Do you have any thoughts on exactly where this fits into Trump's kind of broader patterns or logic?
- [23:50]
Eric Columbus
Yeah, so I agree with all the things that have been said. I think that he doesn't. Israel, Gaza seems to be the rare case where he personally invested a lot of time and energy in trying to get the parties to make a deal, and in part because he had kind of, I think, unique political capital in Israel that he was able to leverage over Netanyahu in a way that is extremely rare for anyone to have. And he also had very close relationships with a lot of Arab leaders. And he had the experience of having, like, Jared Kushner having, in the first administration, having successfully conducted negotiations with a lot of the players in the region, and none of this exists in Russia, Ukraine. One theory that has been banded about sometimes with Trump is that he subscribes to what I think Nixon supposedly tried to deploy, which is kind of like the madman theory, like, try to make your adversaries think that you're just kind of crazy and could do anything. And I have no idea to what extent this is deliberate strategy on his part or to what extent he's deploying it here with Russia and Ukraine. But, you know, I'd say it's probably more likely that he is, in fact, just listening to whoever the last person told him. But it could be that he is. Maybe this is giving him more credit than he deserves, but he could be trying to throw both sides off guard and keep them guessing in this kind of sort of sadistic way by deliberately changing his tune every four days or so.
- [25:29]
Scott R. Anderson
Who knows, yeah, it's really interesting. And I think that last point actually gets at something here which is like a bit of one edge of the sword, maybe the better edge versus all the costs that kind of come with this approach. I kind of think of the Ukraine dynamics as being the dark side of the moon and compared to what's happening in Gaza, because it's actually a really similar dynamic but a very different context with different effects. Where to me it seems like the signature move that's kind of emerging for Trump certainly during this term, to some extent during his first term too, although it's a little more complicated, I think, because his national security team is a little different here. It seems much more about, at least in Gaza and Ukraine, he's really committed himself saying, I want a political outcome to this. I see that as a political win and he's pretty willing to really sacrifice a lot of other stuff just to get that sort of win and to get that sort of outcome. He wants a deal in these sorts of contexts. Maybe it's for domestic political reasons, maybe frankly at this point it's for political and historical legacy reasons that I think obviously is actually something he's really thinking a lot these days, which is understandable. But he seems to clearly want to get to a deal on this and he's willing to sacrifice a lot. And in some ways other can be very good. He doesn't have a lot of priors on this, right? Like he doesn't come in to either of these conflicts saying like, oh yeah, I really think for broader macro policy reasons we need to do xyz. He's coming in saying, I'm willing to give away all that. I don't really believe in any of that, or at least I'm not bought into it. I want a deal in the Gaza context. It's actually kind of like I've talked about previous this week. I think it's actually not a bad thing. I think actually it played out reasonably well because it means Trump has been able to divorce himself from the very strong policy priors of his political party and his first administration even, and really bring a lot of pressure to bear on Israel and to some extent Hamas. But there's already lots of pressure on Hamas. He's kind of kept that in place, allowed Israel to keep that in place, but is putting it back on Israel and that in this case has actually gotten the parties to move. And on top of that, because they seem to have some degree of unity around this 20 point plan now. Like, it seems like the people around Trump are on the, on the same page that this is the way to go, which is interesting like that they seem to come to this sort of view. They've got kind of a consistent policy and so far we're actually seeing a fair amount of follow through on that. Right. Like we have J.D. vance going to the Middle east kind of as we speak to basically, as it's being said by unnamed senior officials in the White House to put pressure on Netanyahu to keep the ceasefire in place. Right. That's actually a pretty big diplomatic move. But it's clear that like they're going to say, hey, we actually really want this. We're going to put pressure on you to do that. Maybe that won't last. That's Ben's skepticism from our conversation last week, but at least for the moment, they seem to buy into it. Here you see the same flexibility, the same intent of bargaining, but it's not clear to me that he has as much unity in his team. In fact, it's clear he doesn't have much unity in his broader national security team about what the right approach is. He's probably getting very conflicting accounts about how reasonable different parties positions are in terms of Russia and Ukraine in this particular moment. He's got this weird dynamic with Putin that he's always had where he's got a weird dynamic with BB2, but that's his relationship with Bibi even soured towards the end of the first Trump administration. I don't think it's what it used to be. For the first few years. He's got some weird dynamic with Putin and fundamentally he, I don't think has a very clear sense, doesn't really know how reasonable is this request from Putin. Some people in his camp are probably saying, no, that's actually a good deal, let's end this conflict. Other people, like Ukraine boosters are probably saying that's a terrible deal. You're opening the door towards a future conflict. And Trump doesn't know how to weigh these things because he doesn't really have a lot of priors, a lot of insight, a lot of views on this. And there's no unified voice. There's no one person he listens to. He's got a bunch of conflicting views in his inner circle. And in some ways this can be a good thing because it can. What he seems to be doing is putting pressure on both sides to come to a point. Right. And you do need that negotiations. You need somebody driving the different parties to a table. Even though it may be bitter pills to swallow for both sides. The downside, I think, is a big downside for Ukraine is that the United States has much more leverage over Ukraine. And I think that in the end, it's a lot easier to force them to make concessions to come to the table than it will be for Russia. The United States have forced that on Russia. And so I do worry the outcome of this is going to be a deal, or at least a US Buy into a deal that is not going to be very easy for Ukrainians to swallow. And then where does that leave us? Ukrainians can say no, but then that's really gonna sour the Trump relationship. Right. Like Zelensky's success for the last few months has been. I can persuade Trump that I'm not the intransigent party. And you hear that still in the public rhetoric. He's still saying, I'm a friend, Mr. Trump. I'm not the one saying no here. It's Putin who's being unreasonable. And Putin's playing the same game, trying to paint Zelenskyy as unreasonable. But in the end, I worry that Trump's gonna be much more persuadable, that it's the Ukrainians who are being unreasonable, or at least he's gonna be much. He's gonna understand he's got a lot more direct leverage over them and can force them to budge more, or at least thinks he should be able to force them. That's where you really get into this difficult dynamics. I'm not sure we're there yet. And maybe what I think the genuine intransigence of the Russian position will come and show its face in the weeks to come, particularly if Putin's not even willing to sit down at Budapest. I suspect that's going to be a big demand on Trump's part. And if Putin doesn't play along, that's actually going to hurt him a lot. But the long term, it still makes me very nervous. That's a really pessimistic story, Nastya, but I'm curious how that resonates with you or how it doesn't.
- [30:46]
Anastasia Lapatana
Yeah. So I actually worry less about the outcome that you've theorized here, where eventually Trump just sort of gets annoyed at Ukraine for saying no to these various propositions and says, well, you know, I've tried, but Ukraine doesn't want peace. And I don't worry about that as much as some other problems here, because I think people are starting to come around to the idea that what Russia is asking for is ridiculous, like that Ukraine is saying no not because we don't want the war to end, which again, is like a very obvious sort of like, of course we do. We've been wanting this war to end since the day it started. Like, we are the ones being killed. But, you know, we've seen some rhetoric from the Trump administration officials before where, you know, J.D. vance himself saying that, you know, Russia asking for more territory that they currently control is like, is unreason. Like they can be asking for that. And so, I mean, I think it's going to be very difficult for the Trump admin to paint Putin as like the reasonable guy in the room, because I think everyone is starting to see that that's just not real. And then the other thing I wanted to add is that I agree that you need this pressure to both sides to get a deal done and you need to be focused on that. But what you also need is an understanding of the context and the history and the causes of the war. And you need to be an expert in the area that you are trying to solve a conflict of. You know, and we see that that's a really big problem for the Trump administration. And we can say a lot of criticism about the Biden administration, but the one thing that I think was present there is there was deep expert understanding of the region. Like the people who worked at the Trump administration in various capacities knew why the war began, knew exactly how Ukrainians felt about it, knew exactly how the Russians felt about it, knew all of these areas, knew that, unlike Wytkov, could actually name the five regions that he says are a core part of it. And we now see that those people are no longer in the admin. And the people who were at the State Department, a lot of them were fired or left. And you look at who's present in these rooms at these summits and it's people who've never worked on this Trump, J.D. vance, some Pentagon officials, Rubio may be the closest person to some reasonable conception of what's happening, but none of them really have any deep understanding of the problem. And that's a huge issue because deals like this, they require a lot of sort of painstaking, long, detail oriented work to get to a settlement that can actually be sustainable. It's not just saying, well, let's all stop fighting and the war is going to end. And I think we've seen a little bit of that happen in the Gaza conflict as well, in that war where there is already fighting ongoing again. And it's not enough to just, well, throw your hands in there and be like, okay, let's stop the fighting. No, like everyone forgets that apart from the territorial issues, there was a whole lot more in the Russian demands. And, you know, this is actually something that I'm thinking of writing about for Lawfare, because it sort of drives me crazy that everyone talks about these territorial issues. Everybody talks about neutrality for Ukraine or NATO and all of that. And all of those are important, and they're are probably the most important part of the agenda here. But there are also a lot of issues of culture that nobody's talking about, but that are hugely sensitive in Ukraine and in Russia. And I think it's a mistake to not care, and I think it's a mistake to think that we can figure out some sort of territorial swap or Ukraine can agree to become neutral and suddenly the problem is going to be solved because the problem is not about territory per se. The problem is much, much deeper. And the Trump administration officials don't understand that. And a lot, you know, a lot of the American public in general doesn't understand that because nobody's talking about it. And I think we should.
- [35:04]
Scott R. Anderson
Well, speaking of hard fought battles overseas, we are on the verge of perhaps some hard fought battles at home. Legal battles already underway, actual battles perhaps yet to come in the states of Oregon, Illinois and California, and soon coming to no other place but the U.S. supreme Court, where last Friday we saw the Trump admin finally run to the highest court in the land seeking vindication of at least a part of the legal theory under which it has been deploying US Military troops to various blue states over the past few months. Specifically, this latest legal action was a request to stay an injunction that had been installed by a district court and upheld by the 7th Circuit Court of Appeals in regard to a planned military deployment to Chicago. This has been stopped by the lower courts. The Trump administration finally came to the Supreme Court and said, hey, we think we have the legal authority, the statutory authority to mobilize and deploy these troops that we need. Please tell us we do, or at least say as a preliminary basis that we do so you can remove these injunctions and allow us to proceed while the broader legal challenge is ongoing. Notably, they actually asked for an immediate administrative say, something that the court has been willing to grant in certain other cases. In this case, it did not, leaving the injunctions in place at least over the weekend. Instead, Justice Barrett, who is the justice associated with the 7th Circuit, said, hey, give me briefing on this by the end of the day on Monday, presumably reflecting the views of the court, at least preliminarily about how to handle the matter. Give us a briefing on this by Monday. And so that came in last evening, yesterday evening. And at this point, I think a decision could be forthcoming at any moment on the government's request. But until then, at least for the moment, the injunction remains in place. No troop deployments are happening. No mobilization of Illinois state troops are. Actually, I believe the mobilization is allowed to proceed. It's just the deployment. Right. So correct myself on that. Lauren, you have been watching these cases really closely for us, as have many of us at Lawfare. Talk to us about the exact legal issue that's being teed up here and the role you think this case may play in the broader legal fight over the domestic military deployments we see happening around different corners of the country.
- [37:10]
Lauren Voss
So let's go backwards for a second to what you mentioned. There is a TRO in place from the district court. That TRO did not allow the federalization or deployment of any National Guard of the United States in the state of Illinois. The 7th Circuit stayed the portion that had to do with the deployment, but allows the federalization. So remember, we have both the Illinois National Guard federalized and then we had that Texas order that originally they were going to bring in 200. I think they're now arguing to SCOTUS that they're going to bring in all 400 of the Texas National Guard to Illinois. So we're looking about 600 National Guard members, presumably most of them are in state still federalized, just not deployable because the 7th Circuit said that that part can continue. So what the federal government did is appeal to the Supreme Court, as Scott said, both asking for an administrative stay and stay of that tro. They did not give the administrative stay. But we're looking at what may happen now that we have both the federal government's brief as well as the state of Illinois and the city of Chicago. So what's interesting here is the federal government is still continuing with the argument first, that under 10 USC 124 06, the President's power is unreviewable. It does not matter how he made the determination that he met one of the three circumstances. The courts cannot review that. And so they have continued that argument. The district court, the Seventh Circuit, have both turned that down. That's based on tracing the Militia acts back to 1895 and that history and a Supreme Court case, Martin v. Mai, trying to say that these are unreviewable. I think it's arguable that 12406 is the progeny of the militia acts, and not just a mobilization authority as it has frequently been treated through time, but they're still making that argument. The second argument that they make is that if there is some room for courts to review these determinations, they can easily meet the relevant standard. Right. And specifically with the third prong, which is that the President is unable with the regular forces to execute the laws of the United States States, there is a huge fight over what facts are the correct facts here, and when you give deference to them, what that looks like. And you'll see that even at this level where they're arguing whether or not the additional forces were needed, whether or not local and state forces are actually supporting or not supporting federal forces. And so right now, it is an upfront question of whether or not the President's determination is reviewable, and then if it is, what is the standard for doing so, and what are the true facts on the ground? There has been a lot of really interesting speculation about how important this case is, what may or may not happen. It is important because this will tie to the level of deference the President is given in domestic deployments. But this is 12406, and this is about the mobilization of 12406. We haven't gotten to so many issues about, like, what missions can they do, how does this interact with Posse Comitatus, Right? And so there's so many other pieces underneath this that could still come up. And then, you know, I know people will never forget about the Insurrection act, but if you read the language of the Insurrection act, there's arguably even more deference. Right? Like that actually has written into the section whenever the President considers, blah, blah, blah, he can do this, or the President can use the measures as he considers necessary. And you see that deference, even written even more so into the Insurrection act, which I think also has a stronger argument for being the progeny of the militia acts. We also have chapter 15, all the DISKA defense support to civil authority. We've had various arguments about inherent Article 2 powers, right. And the protective power and the things you can do. And we don't want to forget like the military purpose doctrine and the idea of, like, counterterrorism. So, yes, this is important, but this is just one narrow avenue for domestic deployment out of so many. And we're still early in the fight, right. We still haven't done so much of it. So the other thing I would say, though, is there's an important piece here around the type of deference and what that extreme deference is in areas of national security, and especially when we're not particularly talking about foreign affairs, we're talking about at home and national security at home. And we have decided that the President needs to quickly respond to possible direct threats to our very existence as a nation. Right? And we've said like this is necessary. He needs this power in many cases that relies on classified or at least internal information on the threat and our ability to counter it. Right. And so this makes it hard to fully evaluate, however, giving this much power to a branch of government or an individual. It's built on this assumption of good faith, right? The individual is truly acting the way that they think is best for the nation. And so to me, in this case and in many other cases that we'll see down the road, the question will be, if not acting in good faith, if the President is not acting in good faith, then what? Right. If you give this extreme deference, but for whatever reason the facts is presented are not accurate, the reasoning behind what they're trying to do, our whole system is predicated on that assumption of good faith. And I think that's really the question, unfortunately that we have to grapple with now because I really don't think it'll be the courts that'll give us a good answer there. And it's been actually pretty surprising that you haven't seen a lot of analysis on that good faith piece. You saw a little bit at the district court level, but not from the seventh or ninth kind of getting into the. Are they actually trying to do what they said they're doing? Is that really the intention of this deployment? And to me, that is the piece that we have to continue to answer and the answer might not be in the courts.
- [43:55]
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Eric Columbus
Lauren, you mentioned the Insurrection act, which is something that Trump himself has mentioned every now and then and kind of like, you know, ominously waving it around and suggesting that he could invoke it if he can, and probably correctly suggesting that it gives him much greater deference. Why do you think he has merely talked about it but has yet to do anything with it?
- [50:40]
Lauren Voss
Yeah, I'm not entirely sure. I think there's been recent threats. Right. And so my assumption is that there is a, there's a public perception that the Insurrection act is like. Like is. Is the nuclear button when you do this, right? Like, it is a big deal. You are not only putting troops on domestic soil you are using them for law enforcement, and you are using them in a coercive manner against American citizens. I mean, I think that we've seen that there's various other ways to do that. So the Insurrection act shouldn't probably be considered the nuclear option. But I think that that is a view that the general public has. And so I think if you want to continue to get the public support for your actions, you have to build the narrative. Right. And you build the narrative by continuing to do what you're doing now, which is smaller deployments, other avenues, support missions in what we're seeing, in some cases, very aggressive actions by ice, including against American citizens. Right. In order to create the facts on the ground that give you a better case. And so my assumption is that it's just a matter of time. The Insurrection act will be used at some point, but the administration is first building a narrative so they think that they can get more public support for its use and have a better story to tell of. We needed it because these people are out of control. They're violent terrorists. Look at what they've done. And I think that, you know, as much as they're saying facts on the ground, the facts on the ground just don't. Don't tell that story yet. I don't know. Scott, do you have a different thought?
- [52:30]
Scott R. Anderson
I do a little bit. And it circles back to kind of what the Insurrection act does versus 124 06. That steppe chastity provision, which is worth noting, originates in the 1903 Dick Act. That's the statute that kind of established what is today the National Guard system. All the time, they still referred them as state militias in that act. And I think I read it. I understand people read it differently, including the Trump administration. To me, it seems pretty clearly like a mobilization authority, because it doesn't do what the Insurrection act does. It doesn't say anything about the president being able to do anything with these troops that he can then federalize, whereas the Insurrection act does that quite expressly. And it's clearly written in dialogue with the Insurrection act after the fact in a way that you have to accept that if you're making the case for deference, as the Trump administration already has, because Martin v. Mott, the Supreme Court case they're all relying on from 1827, was about the Insurrection act, not about 12 406. That didn't exist for almost a century until almost a century later. So if you're drawing that sort of analogy, I think it's harder to look against the language of 12:406 and compare it to the Insurrection act and say clearly this actually authorized as something affirmatively. That's why we've seen the Executive branch lean on the protective power, the idea that the executive branch has the inherent authority to protect federal offices and personnel, as the actually like, frankly, lean more heavily on that theory, at least in litigation in California, to justify its actual activities that it's pursuing. And it's kept its activities limited within that version of that scope, although the borders of that and how it runs in the Posse Comitatus act is contested. That relates to the Insurrection act, because if you look at the Insurrection Act, Lauren's absolutely right. At least one prong of the Insurrection act is expressly deferential in terms of the activating factors. I'm not sure I would read the other two as being expressly deferential, in fact, and I would suggest that because it is expressly deferential in regard to one that actually suggests the other two aren't expressly deferential. But the one is the one that's most relevant here. It's about difficulty enforcing federal law. And that provision says whenever the president considers that unlawful obstruction, combination or assemblages make it impractical to enforce laws of the United States, that seems pretty deferential on its face. And then you have that combined with Martin Vmont. So on its face, it seems like this is a provision that the President would have a lot of leeway to invoke. But the barriers to that, I think are political, like Lauren said. And I suspect it's not just external political, like worried about political backlash, although I think there's probably some of that. I think it's a lot of internal pushback, at least particularly from folks in the military, I will say. At least we know during the first Trump administration that's where we saw a lot of pushback coming, including from then Secretary of Defense Esper, from Mark Milley, the Joint Chiefs of Staff. I suspect it wouldn't come from the Secretary of Defense this time around at that particular level. But I do think that there is probably a sense that there is some sort of built in reluctance to do this as anything but a last resort, and maybe in other parts of the executive branch too. That is the well established, expressly stated view of this authority, that it's a last resort that's all over the books. So I suspect that sort of political barrier, it's not just the external pressure, it's the fact that this would actually cause a lot of dissent, potentially within the government and even within parts of the government that's even hard for this administration to ignore, which are few and far between, but actually implicated here. And then part of that also is like just this background idea that, man, the Insurrection act just looks like a way bigger idea because it actually authorizes you to use troops to enforce the law. That's something that actually the Trump administration says it's not doing and doesn't intend to do in Illinois or Oregon, and it's not doing yet in California, they say, oh no, we're just protecting federal personnel and property while they enforce the law. We're not enforcing it ourselves. You can use the military personnel to enforce it themselves under 252, under this particular provision of the Insurrection Act. So in a lot of ways it'd be a lot easier to them. But I suspect it's a combination of those political factors. And then there's also this background idea that it's just a much bigger idea. Much bigger, because, you know. 12406 in the end, the debate is over whether we can federalize National Guard troops. We're relying on this whole other theory that the state of California actually didn't even directly contest the protective power to actually justify what we're doing in the states. The debates over how it intersects with the Posse Comitatus act, that's like a marginal question. A lot of what they're doing, and particularly if they only care about optics like we want troops in the state making a big show, you can definitely get that with the protective power. Like, I don't think that's hard because at a minimum, everybody agrees you can use them to protect federal property, maybe federal personnel to some extent. Just the real friction point is when they're forward deployed, if you will, with law enforcement agents doing law enforcement activities. So it's a combination of external pushback, internal pushback, and then this big legal question is because it's a bigger deal, is it going to get more scrutiny? Even though on its face it seems like it's more, if anything, more differential on the face of the statute. Lauren, does that sound right to you? Wrong to you? Do you agree with that? Disagree with that?
- [57:11]
Lauren Voss
Yeah, I mean, I think the only thing where I feel a little bit different about it is how different is 12406 and I think that's actually uncertain at this point. I think we all said this is a mobilizing authority, it's not a mission authority. That is the way it's always been thought of. It was in every case used as a mobilizing authority with the Insurrection act, except for one. Right. And that's when President Nixon used it to federalize the National Guard and use them to deliver mail when there was a strike rated. And maybe that wasn't pushed back on because they were delivering mail. There was no concern about what they were doing on the streets. I don't know. But it seems like it was actually used as the mission authority in that case. But you're right in that the original arguments in the California case were using the protective power as the mission authority, but the government's moved away from that. They have explicitly said in oral arguments in other situations that, like they're relying on 12406 for both granted, they are still doing a narrow mission authority and just talking about protecting federal property, federal missions. Right. So it's like it still sounds like they're kind of relying on that without saying it. And it hasn't, but it hasn't been argued and it hasn't really come up in the decisions. And so I just, I don't know how they, the courts are actually going to feel about that argument. And there could be a historical argument relying on President Nixon's call up where they say that this is also the mission authority. But I think either way, that also gets us into this really nebulous area of mission authority and especially the protective power and what the President can do just based on inherent constitutional powers that are not explicitly written and the courts haven't decided. Right. And that just opens up a whole nother can of worms that could be a way that this administration decides to go at some point either under 12406 or various other provisions. And so to me, I have more questions and answers once we start talking about constitutional authorities for mission. But I see 12406 is still somewhat undecided on whether or not people are going to buy into the new argument that it's also a mission authority and we don't have to get into a constitutional debate. And you know, frequently if you don't have to get into the constitutional issue, you don't. So, you know, we could potentially go that way even if it is a new argument and different than what we all would have said four months ago.
- [59:46]
Scott R. Anderson
Well, I agree with that, but I actually think that's a reason why it's really telling that they are keeping their activities within the scope of the protective power. Like that's actually more relevant. They have said on the books a 1246 is unreviewable, even though they've lost on that at this point for every district court and every appellate court that's looked at that issue and then they've said also oh by the way 12406 is both actually not just mobilization authority, also a mission operational authority. Oh and by the way it's also expressed statutory exception to the Posse Comitatus Act. But in spite of all that we're not violating Posse comtat even if it weren't weren't an exception and were operating within the protective power and that's been pretty consistent litigation through all the representations I've seen in court. I don't think they moved away from that. They've nested their arguments. But the one the court's going to rely on until they start pushing the envelope past a certain distinction is this question all they have to rely on is protective power. Now if they say oh you are pushing past in the posse and you're violating the Posse Thomas Tadas act act then they have to address okay, is 12406 an exception to the Posse Comitatus Act? No and or they have to say I mean at that point not even true. You actually have to get to it as an operational authority. Actually not sure you ever actually do because the real question is especially because California's never actually challenged it that way. I don't know if Oregon or Illinois will but in the California case at least they've just challenged compliance with the PCA and so they just have to address whatever authority is under Is it a violation of the pca meaning is it within the scope of the PCA or is there a statutory exception? It's interesting like it's just these weird.
- [61:22]
Lauren Voss
Nested arguments but I think they're arguing that they're not doing law enforcement. Right, but there is an argument that they are doing law enforcement.
- [61:32]
Scott R. Anderson
Oh totally, totally.
- [61:33]
Lauren Voss
Absolutely right. And in Chicago there was a really interesting like back and forth where Judge Perry was like asking the questions of like okay well can you really talk to me about scope and what more why more this include You've also made comments that elected officials are impeding your enforcement of the law. And the DOJ lawyer really struggled to talk about what the scope of the mission was really going to be and basically said it's dynamic and we'll see. And so that was the first time as composed to Portland and LA where they were making more narrow this is all we're going to do arguments that in Chicago it does seem like they are trying to make a somewhat broader argument. I think they're still arguing they're not doing law enforcement. But when you read, you know, what they're actually doing, arguably some of those things would or what they want to do, arguably, you know, those things would be considered part of law enforcement in some categories. So I don't think that they can like just it will be harder than it seems for them to slip out of that.
- [62:35]
Scott R. Anderson
Yeah, that may be right. Well, speaking of creative application of national security statutes, we've seen some other ones in this past week. We saw what is the first indictment of what is alleged to be an antifa terror cell, I think is actually the actual phrase used in the indictment that came out of a federal district court in Texas last week. Here we have the indictment of just two individuals, although they were part of a group of a broader group of individuals that probably will face criminal charges at some point as well. But this indictment, at least the latest one, the one I've seen, only addresses two of them about an incident around the 4th of July this past year where several individuals set off fireworks and took other actions around a detention facility in Texas. They were heavily armed and had arms and a vehicle near them. At least one person ended up opening fire at some point that ended up striking a police officer in the neck. I believe the officer survived. I haven't seen it listed as a fatality in the media accounts, but was injured in the attack. So not a serious incident to say the least. And this week we saw two of the people involved charged with a variety of offenses, including terrorism offenses, specifically providing material support to terrorists, attempted murder of federal officers and employees, attempted murder of two counts of attempted murder of officers, employees, three counts, three counts of attempted murder of officers, employees, and counts of discharging a firearm in furtherance of a violent crime. So three charges of violence, attempted murder of a federal employee who's charging a weapon in relation to that crime, as well as material support for terrorism. Eric, you've been looking at this case a little bit for us. Talk to us a little about the statutes that are being used here and how exceptional or not exceptional this particular action is, which by the administration, it's worth noting, is being framed as the first of a wave of crackdown coming on these domestic terrorism, as they describe them, incidents.
- [64:22]
Eric Columbus
So just to pick up on your description of what happened in July, this attack had there was a criminal complaint filed a few days after the attack where 10 individuals were charged with attempted murder of federal agents and three counts of discharging a firearm in relation to a crime of violence. And there was no mention of Antifa at all, Even though it was pretty clear from assuming the facts as alleged in the criminal complaint were true, it was clear that these were violent leftists. Flyers were allegedly found saying, fight ice terror with class war and free political prisoners. But the original charges were pretty much what you'd expect. And it was only last week that there was a grand jury handed up an indictment that included the one additional charge of providing material support to terrorists and describing the defendants as members of a North Texas antifa cell, which kind of implies the existence, I suppose, of a South Texas antifa cell or an East Texas or West Texas. And this indictment didn't really advance the ball about in what way they were antifa or anything. It just basically slapped that label on them because they were wearing black. They were violent, apparently leftist, and opposed to the government. So what happened? Now, as you mentioned at the top of the podcast, last month, Trump issued an executive order designating Antifa as a domestic terrorism organization. And that's not a thing. The law provides for the executive branch to designate foreign terrorist organizations, but not a domestic one. And folks have compared it a little bit to Michael Scott in the office when he being advised that declaring bankruptcy might be a good solution to his financial woes. He walks into the room and yells, I declare bankruptcy. That's not how it works. And the executive order had no citations to any laws, to any authority whatsoever. So a few days later, Trump issued a presidential memorandum whose title was National Security Presidential Memorandum 7, or NSPM 7, which basically tried to put some meat on the bones of what he was talking about with antifa, and gave some instructions to various agencies. And among the things it said was that criminal investigations should prioritize a bunch of crimes. And there was like a laundry list, including providing the statute that we were talking about providing material support to terrorists under sections 2339A and 2339B. Now, these are two similar statutes that are often charged together, but are very different. And in this case, only 2339A was charged. 2339Amakes it a crime to provide material support or resources to anyone knowing or intending that they are to be used in preparation for or in carrying out a long list of crimes that we might describe as terrorism, adjacent, if you will, and including attacking a federal employee, which was one of the underlying crimes that these folks were charged with back in July. And the statute is titled providing material support to terrorists. So what they've done here, I'm hard pressed to find a way in which this really advances the case against them in the sense of being able to convict people who you might not otherwise convict because they've already been charged with these people who had already been charged with attempted murder of a federal employee or aiding and abetting the same thing through 18 USC 2. It does, I suppose, if you have some evidence problems, it does enable you to go to use the material support or resources prong, which is quite broad and can include like giving advice. And that I suppose could be broader than the aiding and abetting statute of 18 USC 2. But it seems to me just giving the timing of all this is that this is largely an exercise in branding. It's a way to gradually indicate to other folks that Antifa is a real thing, that the government is doing real stuff against them and perhaps paving the way for something that was also talked about in NSPM 7. And it's something that Trump Vance, Stephen Miller have been talking about quite a bit, which is going after what they allege are the funders of Antifa. And the name George Soros gets banded about a lot for reasons that appear to be wholly unsupported by the evidence at this point.
- [69:44]
Scott R. Anderson
Yeah, I think that's really astute, and it is, you know, the more slightly malicious attribution of merit of motive here. But I do think it's hard to really figure out exactly what they're accomplishing otherwise in this particular case. Although maybe there are other people in this broader cell or network that they want to bring 2339a charges against. But like you said, it's hard to see why they wouldn't be able to get at them with conspiracy. Some history of this provision I think is really useful for those who've looked at this. And I should say Bobby Chesney wrote a phenomenal RV article about this back in 2005, I think in the Harvard Journal on legislation that has always been kind of my touchstone in following this stuff for the last two decades or so. But 2339A was enacted back originally as the original material support Statute back in 1994, if I recall correctly, but was proved to be really hard to use because it has a fairly high mens rea requirement, because it kind of has to because it's restricting things that are otherwise pretty understood to be First Amendment protected. So it says essentially you have to be no or intent that the material support you're providing is going to be used in an array of violent crimes. And that sort of mens rea. It's just a Hard thing to prove. That's why they ended up enacting what is now known as 2339 B. The much more widely used material support for terrorism statute is not implicated here. That said, basically, okay, we're going to designate foreign terrorist organizations that we've determined are engaged in violent activity and we're going to make it a crime to give money to those groups. Much easier to prove once you show that people have reason, know or should know that they are a designated fto. And you would even have law enforcement agents occasionally telling people giving money, hey, just so you know, this is an fto. You need, you need to stop doing this. It's a violating the crime to establish mens rea. And if they kept doing it, they'd be like, well, we got you. And otherwise they would stop spending the money. That's a much more effective rule. But like, that's not something that you can do with the current legal framework and would raise real constitutional questions if you tried to do it to domestic enemies. But it seems like in blurring the distinction of these two and talking about material support, you're trying to create the impression that, yeah, we can go after people just for giving money to these groups. Like you could if it was Al Qaeda or Hamas or another designated foreign terrorist organization. Just like these are designated terrorist organizations. But straight up, that's not what the law does. And not only that, we know it doesn't because they had to enact a different law that they couldn't use in this case and can't use domestically to get to that sort of outcome. Maybe they will push the envelope on it. Like, maybe they'll try and bring those cases. But it wasn't easy in late night in the early to mid-90s when this was brought. I don't think it's going to be that easy now necessarily. So it is a little bit of. A little bit of a messaging shaping authority. But it's worth noting they're not the first ones to do this. We have seen other domestic terrorism prosecutions under 2339A in a handful of cases, not many of them, at least as of the last count I saw. We had a really good piece on this by Eric Halliday and Richard Rachel Hanna, both who wrote when they were law students for us back in 2021 called how the Federal Government Investigates and Prosecutes Domestic Terrorism. Folks are interested. Definitely check that out on lawfare. Laura, there's one other aspect of this I want to come to you on, and that's just A question about how this intersects with our last topic, these domestic military deployments, because that is something we've seen. The rhetoric of these two things, things really blend in together where this talk about antifa as a terrorist organization engaging in terrorist activity was used a lot around the Portland military deployment in particular, and particularly by the President in justifying it not appearing in court filings, notably that I recall seeing at any point, but certainly in the rhetoric the President has used. I know you've been thinking about this issue for us at Lawfare. Talk to us a little bit about this history of doing domestic terrorism, counterterrorism operations and the way the military has or hasn't been involved in the past and maybe could get pulled into it or attempted to pull into it in the future as another avenue toward the domestic military deployments we know this administration is interested in pursuing.
- [73:40]
Lauren Voss
Yeah. And it's been not just language from the President and senior advisors like Stephen Miller, but you actually see it in the DHS requests for forces as well. Well, in a number of instances. So, you know, in official government documents. And so, you know, we're talking about domestic terrorism here. We're talking about, you know, it being largely an exercise in branding in the indictment and what we're talking about previously. But I see larger risk when we talk about how it could intersect with the military. And then, you know, think about what we saw with the boat strikes. Right. The argument is that criminals are terrorists and therefore you are allowed to engage them with military force. Right. And so when you start calling criminals terrorists, you open up different avenues to responding to them. So if domestically antifa are terrorists, you know, you, you start wondering about some of the logic here in the indictment. It doesn't really explain the antifa cell or antifa enterprise. Right. And so I will say, you know, when there are groups trying to violently overthrow the government, you absolutely need to stop them. Right. But the question becomes, how are you defining who those groups are and who is part of them? And that is what makes me nervous here, is that you could turn into responding to terrorists with military action. So I see, you know, after, after 9, 11, you had military deployments domestically that were counter terrorist terrorism focused. You had a ton of National Guard, like tens of thousands at airports. Right. You had a mission to protect the skies going on. And you saw things like that. But what you also saw was a worry that there was going to be more domestic attacks. And so a lot of analysis and speculation, including at DOJ olc and I've talked about this on your Podcast before what if we have to actually use the military to fight domestically against terrorists? What are the implications of that? If we actually have terrorists hiding in apartment complexes and they're going to launch an attack, how do we think about that? What ends up happening is a conversation about using military force in a law of war paradigm on American soil with effects on American citizens. And that implicates, you know, the First Amendment, the fourth Amendment. And I think what we could see here is an interplay between this conversation around domestic terrorists and what we're seeing with our domestic military deployments now, which we say are protection of federal property and federal missions. But then you see that justification that it's because there's antifa terrorists. Right. And they're all connected. We're tying Dallas, we're tying la, we're tying Portland, Chicago altogether. And so you could see a wider deployment of the military, including in a law enforcement role, because they're responding to antifa.
- [76:38]
Ad Read Host 2
Right.
- [76:38]
Lauren Voss
And they're doing something for a military purpose, a counterterrorism type purpose, which is an exception to Posse Comitatus. We're not there. We're not there. But you see how all of these arguments could build towards opening up wider military deployments. And we've seen the government speculate about how this could play out in a counterterrorism role after 9 11. And I see some of that playbook and how it could be borrowed here.
- [77:07]
Scott R. Anderson
Yeah, it's definitely a scary picture. Although I will note we have at least one skeptic, unlikely skeptic in our camp that's none other than John Yoo, the authority of the Office of Legal Counsel. Opinions in the early George W. Bush administration talked about domestic counterterrorism operations in relation to a foreign terrorist organization, Al Qaeda at the time, saying the President has brought inherent authority to do such, although the Bush administration never did. He's actually come out recently in op ed, I think in the Washington Post, if I recall correctly saying essentially I don't think this really works for domestic terrorism or for also some sketches about targeting counter narcotics organization groups overseas as well as much more bullish about the idea you can invade Venezuela, but a little more skeptical about some of these other claims the administration has been rolling out. So we'll see where people fall on these sorts of claims. It is going to be an interesting and wild ride as it has been for the last few months, in the months to come. But until then, we are out of time for this week's episode of Rational Security. 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. Lauren, what do you have for us?
- [78:10]
Lauren Voss
For those that are in the DMV area and have small children, I have a recommendation. There's a whole bunch of Halloween farms you can take your kids to that are overwhelming and super crowded. I recently took my 2 and 4 year old to Wayside Farms, which I'm going to recommend as less crowded. I also, being from Missouri, you have to cut the pumpkin off the vine. I don't want any pre picked pumpkins. I like don't get that as a thing.
- [78:34]
Scott R. Anderson
It's harder than it sounds. Those vines are really tough. You really got to get in there.
- [78:38]
Lauren Voss
You should bring your pocket knife. You don't have one that you carry?
- [78:41]
Scott R. Anderson
I have one on me right now all the time. I literally do. I literally do. But it's only about this big, so it doesn't do that well. It gets to the vines.
- [78:47]
Lauren Voss
I don't think so. You, you can cut off the pumpkins off the vine. But it had a corn maze that was appropriate for toddlers. You know, took us 10 minutes. They did not get lost. But you know, had the standard hay ride, had a barrel ride, had sand pits, had corn to climb through. Like all of the things that are perfect for little toddlers and wasn't quite as overwhelming as some of the other ones. So we actually spent like eight hours there. So I'd call it a big success. But mostly pumpkins on the vine of various colors, shapes and sizes. My two year old got one covered in bumps. My four year old got one that's three different colors. So whatever, whatever your heart desires you can find there.
- [79:33]
Scott R. Anderson
I love it. Yeah, the DMV is like I think more so maybe than other parts of the country. I'm not 100% sure. I feel like really like a nest for these sorts of agro tourism places. An hour outside the city to go like pick things in different seasons. It's kind of amazing if you have young kids and you're not taking advantage of this. I think I'm out of one of these things most weekends with my young kids because it is so popular and a few of them have really cracked secret where they let breweries or cideries move in and serve beer or adult cider at various little way stations along the way. Among the corn mazes. Those are the real winners. You can find it. I don't know if Wei Si is on that list or not, but I'll check. I'll put it on My list to check it out. Eric, what do you have for us this week?
- [80:07]
Eric Columbus
I'm going to offer you this shirt off my back. I'm wearing a blue chambray shirt from J. Crew. Now I'm not the type of person who would ever buy a shirt from J. Crew, but mostly due to cost. But my wife somehow stumbled upon a review in Wirecutter of this shirt, a long sleeve blue shirt that a writer named Alexander Aciman, who is the son, who was a good writer and the son of a great writer, Andre Aciman, wrote at great length about how much he loves the shirt and how comfortable it is and how durable it is and how he can pack it and take it everywhere. And I should probably button an extra button than what I have on right now. But anyway, my wife found it somehow on ebay for a second hand for a a very cheap price, like maybe 20 or 30 bucks and she got for me and it's become almost my second skin. And I've been wearing it to multiple podcasts and I've even gotten compliments on the street from, from dudes saying, you know, you look great. And it's been both times I've been wearing this shirt. So I assume that must be the.
- [81:17]
Scott R. Anderson
Reason I love it. It's great. I have owned such shirts in the past, I believe from J. Crew as well. And I generally like chambray shirts. I've got an old one I've had for like 10 years now. Haven't quite gotten that like distinct fade that the author talks about in this piece. But one of these days soon I suspect it's creeping in. But I like a good like ode to random articles of clothing. This is like a 2000 word ode to this particular type of shirt, which is quite impressive even for a wire cutter. So it's, you know, a joy to read. I like when people are passionate about things. My object lesson is also a joy to read. There is a piece that just came out this morning in the New York Times Magazine or sorry, I should say it was just published online this morning. It's associated with the New York Times Magazine and the New York Times Pub. So I think that meets the magazine this weekend, I think is how it works. I'm not 100% sure. It's called you'd're Going to Lose youe My Three Day Retreat in Total Darkness by Chris Collin. It is a very in depth personal narrative about a person going through a darkness retreat. I have since Aaron Rodgers went through a darkness retreat three years ago in a way that kind of blew up my fantasy football season. I have really been curious what is going on with these darkness retreats and what's it about? And I'm like always curious, like this is something I could do maybe at some phase in life, you know, try and broaden my horizons a little bit. And it is a really interesting, I think all around pretty positive assessment of this experience. Really well written, really interesting, really kind of captures kind of the mental journey the author went on. So I'll recommend that as a little fun, interesting weekly reading. I'll also say just as a follow up to a prior object lesson, last Tuesday I was able to go to a phenomenal show with Katie Pruitt at Union Stage that I plugged a few weeks ago for my object lesson here. The show is amazing. The venue is actually very cool. Union Stage. I actually somehow never been to that venue. It's a great small intimate venue on the wharf. Not a small intimate neighborhood, but small intimate venue there. But I will say the best part about it is that because I plugged it on National Security, lots of listeners were there and I had no fewer than three or four of you guys because one of you was with a spouse. I don't know if they listened to. I'm going to count them. Four of you all came up and said hi and said you listened to this podcast, which is wonderful to hear. So from Norway to stage, Rational Security is making waves. I'm glad to hear their listeners out there. If you ever see me in public and I'm hard to miss. I'm a very distinctive looking guy. I'm six and a half feet tall and bright red hair, although it's getting grayer and whiter by the day. But in the mean, as long as I still have bright red hair, find me. Say hi, Love to say hi, Love to meet you. Don't hesitate. And I really appreciate those folks saying hi and coming out to the show and showing support for Katie, who I think put on a phenomenal show with the other folks she had with her and hope everyone enjoyed it. Finally. Nastya, bring us Tom. What did you bring for us for an object lesson today?
- [83:40]
Anastasia Lapatana
I have been reading a lot of essay collections recently. I have a bit of an obsession with essays as a form and so my recommendation is a book by Zadie Smith, who's an English writer. I think she's pretty popular in the us at least among the younger left leaning demographic. But her essay collection that I'm reading now is Feel Free. I really enjoy it. There are some pieces that are sort of distinctly political commentary which I enjoy the most. There are some that are more cultural commentary and reviews and stuff, but it's great. One thing I appreciate, especially about her, apart from the amazing writing, is that even though she's, you know, a typical sort of left intellectual, she's also very critical of a lot of her, I guess, colleagues in that category, which I don't encounter a lot. I have a lot to say about how I feel about people on the left and what they think about Ukraine or not think about Ukraine at all. So I always appreciate when people can criticize their own fellow people in their camp. And she does that. I think that's great.
- [84:51]
Scott R. Anderson
So that's for me, wonderful, wonderful, wonderful suggestion. Not the first time I believe Zadie Smith has appeared in Object Lesson. Probably not.
- [84:57]
Anastasia Lapatana
People may know her because she wrote the Fraud somewhat recently and it's been everywhere. I remember when I was in the US last, everyone was, you know, everyone was reading it.
- [85:07]
Scott R. Anderson
The copies are definitely floating around. But a good recommendation. We have lots of self critical, navel gazing leftists here on the podcast among other people on the right and left. So no doubt we will hear some other recommendations. That's a great one and thank you for that. And with that, that brings us to the end of this week's episode. But Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfaremedia.com 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. Sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast and other special benefits. For more information, visit law firmedia.org support our audio engineer and producer this week was Noam Osband of Go Rodeo and our music as always, was performed by Sophia Yan and we are once again edited by the wonderful Jen Pata. On behalf of my guests Eric, Nastya and Lauren, I am Scott R. Andersen and we will talk to you next week. Until then, goodbye. You know what's faster than your paycheck? Literally everything. It's time to get your pay up to speed with Earnnnin. You can access your pay as you work. Instead of waiting days and weeks for a paycheck, get up to $150 a day with a max of $750 between paydays. No interest, no credit checks and no mandatory fees. Because, I mean, hey, it's your money. Download the Earnin app now to get it and join millions of people making any day payday that's E A R N I N. Earnin is not a bank. Access limit are based on your earnings and risk factors available in select states. Expedited transfers available for fee terms and restrictions apply. Visit Earnin.com for full details.