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- [00:01]
A
I'm about to say something that I think will more so than other things I say on this podcast, which is actually kind of astounding. Mark me as a middle aged man and father, which is that I had my very first lime scooter experience this morning while trying to get here on time for this podcast by virtue of my bike being in the shop. Are you lime scooterers? Anna, you are the most useful of us. Are you a lime scooter person? You're like, no, not enough aware enough of your own mortality yet to avoid those things.
- [00:30]
B
Definitely not. In New York and Georgia, that's not a thing. But in D.C. oh, dear. Sorry. Large dog.
- [00:41]
A
That's okay. Look, we may not have scooters in Georgia, but we do have dog attacks, so we have two dogs going for us.
- [00:48]
B
But in D.C. one of my favorite things to do is go to the mall and, and get one of the scooters. And especially one of the, like, main things I recommend to people is doing this at night, like really late at night at like midnight. And you go around to all the monuments. However, there are some of the scooters that like, kind of stop automatically around certain areas of the monuments. But yeah, it's really fun. I mean, I'm into a scooter. What did you think about it, Scott?
- [01:18]
A
I. I was not a fan. I was, I will say, instead of finding it, like, dangerous, what I usually. My experience with a scooter usually is that I see like nine high school students piled on, seemingly going like 55 miles per hour down a bike lane. And all my fatherly instincts kick in. I say, this is bad news and bad for society. We should kill these things. And then I was on it today. It just felt so applaudingly slow. I felt like I didn't get anywhere. Maybe I was in one of the slow zones or something.
- [01:42]
C
As some people who listen to this show will recall, I was a Segway rider for a long time.
- [01:47]
A
That's right.
- [01:48]
C
And I wore out several segues. And I just gotta say, you know, people, when I started writing a Segway, people would say, oh, you shouldn't do that. It's so dangerous. I'd be like, no, you can't fall off of this. It's gyroscopically balanced. It's really smartly designed. And then people started riding scooters which are, you know, can fall in any of several directions you can flip over the top of. They ride them in traffic. And I felt so like, wait a minute, you guys were yelling at me about my segue. And by the way, they're slow and plotting, whereas the Sega, we would just zoom by them.
- [02:31]
D
We're not addressing the biggest problem with the DC scooter ecosystem, which is that they're a blight up on the landscape. When I was still living in the district proper, I could not get out of my condo without nearly tripping on one. I used to regularly see them immersed in Rock Creek on my jogging runs. There's no actual mechanism for ensuring that these things don't just become a new form of pollution, and I just object to them on an esthetic basis.
- [03:06]
B
Well, I would just like to clarify, Ben, that I think the reason people were worried about your Segway use is not because it was a Segway per se, but because you would do things like you would call us and then be like, hold on, let me, like, let me like, get Quinta on the phone. And like, we'd be like, you're. You can't do this while you're driving your Segway.
- [03:26]
C
I used to do meetings from the segue.
- [03:28]
A
You tried to record a Lawfare podcast episode. Segue, I believe. And that was where it became a bridge too far. 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, whether they are win our lanes or not. I am your host, Scott R. Andersen, thrilled to be back with a few of my colleagues as we dig into not one, but two weeks. By virtue of my vacation last week of national security news, we've had a couple of big developments. We've got the end of a Supreme Court term. We've got the continuation of the ODNI story and a couple other things that we have been eyeballing and a few more big international stories that we're going to talk about next week on the podcast. First, let me introduce my guest for this week. Joining us once again is Lawfare editor in chief, Rational Security co host emeritus Benjamin Wittes. Ben, thank you for coming back on the pod.
- [04:24]
C
Great to be here.
- [04:26]
A
Ben is once again hanging his Lawfare ISIS flag, which I always find slightly disconcerting, behind his designated recording spot. The large black flag sends a message, even if it's the Lawfare logo.
- [04:37]
C
Man, I didn't design it. This was an Ian and a goat rodeo creation for the hype house that Anna Bauer and I spent six weeks in.
- [04:50]
A
That's right.
- [04:51]
C
And I just couldn't let it go. To waste. So I brought it home and it is now my background and it's stuck open right now. I can't close it.
- [05:00]
A
All right, well, with that intimidating visage looming over us, let us turn sights to our second guest, Lawfair Senior Editor Anna Bauer, fresh off vacation herself. Anna, thank you for joining us back on the podcast. It's been a while.
- [05:12]
B
It has been a while, but I'm glad to be here and glad to be back.
- [05:16]
A
Wonderful. And joining us once again is among Law FIR's other senior editor, Senior Editor Michael Feinberg. Mike, thank you for coming back on the pod as well. Glad to have you on to help us sift through the news of the week.
- [05:27]
C
Of course.
- [05:28]
A
Well, let us get right into it. We've got a couple of big stories that accumulate over the past few weeks. Topic 1 Humphrey's executioner On June 29, the Supreme Court closed out its term with a trio of decisions on the President's power to fire officials at supposedly independent agencies and Trumpy Slaughter. A 63 majority up Trump's firing of FTC Commissioner Rebecca Slaughter and overruled the 90 year old precedent Humphrey's executor handing the president at will removal power over roughly two dozen multi member agencies. I should say the members and commissioners of those two dozen multi member agencies. The same day in Trump v. Cook, the court refused 54 to let President Trump remove Federal Reserve Governor Lisa Cook, carving out an exemption for the central bank. And a day later in Blanche v. Perlmutter, the justice declined to let President Trump oust the Register of Copyrights. Shira Perlmutter, whose office sits within the legislative branch, or at least seems like it likely sits within the legislative branch. That's actually a little bit of a point of contention in the litigation was the Supreme Court seem to tip its hand, but perhaps it thought it very well might. Taken together, what do these cases tell us about the unitary executive and the future of agency independence? Topic 2 For your Lies only the office of the Director of National Intelligence is in free fall since Bill Pulte, a housing finance official with no intelligence background, took over as acting DNI on June 19. He has demanded a roster of every employee, fired the head of the office that oversees the President's daily brief, and all but liquidated the National Intelligence Counsel. The fight over his appointment has already cost the government its Section 702 surveillance authority, which lawmakers let lapse rather than leave in Pulte's hands. And President Trump abruptly canceled the confirmation hearing for his own permanent nominee, Jay Clayton to keep the less shackled Pulte in place. How did the nation's top intelligence coordinator get here? And how much damage can a politicized ODNI actually do? And Topic 3 Fixer Upper in one of the strange turns of the Trump era, Michael Cohen, the former fixer whose testimony helped convict Trump of 34 felonies in New York state court, says he and the president have reconciled. Cohen, who once vowed to flee the country if Trump won reelection, said that the ice between them didn't just melt, it broke. And he's now taking a weekend slot on a conservative radio station with what he says was Trump's glowing recommendation. The thought arrives as Trump's appeal of his New York conviction and related civil fraud judgment grind forward. And after Cohen publicly claimed he felt pressured and coerced to testify, what might Cohen's turn mean for those pending appeals? So, for our first topic, we had a big week at the Supreme Court last week. It is the end of the term. We never know exactly when it's going to come. Usually it's by the end of June. Sometimes it bleeds into July. This year. The justice got it under The Wire on June 29. So we saw a decision in a number of cases, a lot of which have valences here at Lawfare. We saw important Fourth Amendment case in Chatri. We saw some important decisions regarding campaign finance reform, a little out of our lane, but nonetheless notable. We of course, saw the birthright citizenship decision. And then we saw what is, I think arguably, and I think we can say this fairly confidently, the most consequential decision, certainly this last suite of decisions, arguably the whole term, at least one of the most consequential the whole term. That is the kind of paired cases of Slaughter and Cook about the president's removal power. Ben, you and I had a conversation about this, you may not remember on this podcast, I think possibly on one of our other podcasts, about what exactly the future of Humphrey's executor was likely to be under the Supreme Court once we saw the initial removal. So more than a year ago now, when we saw the FTC commissioners, Rebecca Slaughter, one of her colleagues, get removed, people removed a number of agencies, exactly where the line would be drawn, how far it would go. I'm wondering how you came to these decisions, how surprised you are about where the line they seem to be drawing and the lines that they haven't drawn, that we still leave the big questions open about where they're going to go and how far they're going to Go talk to us about what you sense you made of these decisions that came down last week.
- [09:12]
C
I think this is very possibly the least principled outcome you could have hypothesized here, which is. So look, there is a decent argument which was first articulated by the court majority in Myers, overturned in Humphrey's executor, and then kind of re vivified by Justice Scalia in the dissent in Morrison v. Olson, which is kind of an almost biblical text in the judicial conservative movement. And that argument is that if you are a principal officer, you must be appointable and fireable by the President at will, full stop. And that anything that interferes with that interferes with the unitary executive and kind of causes Alexander Hamilton to commit seppuku in his grave. And that is a coherent and plausible interpretation of, of Article 2. It is inconsistent with 100 years of case law. But sometimes you overturn case law. And so I have believed at least since SELA law that Humphrey's executor was a dead precedent walking and it would be overturned. And I don't think there's anything surprising about the majority's decision to pull that particular trigger, nor do I think there's anything unprincipled about that. It is the completion of a 40 year old project of reorienting the Appointments Clause. And one can agree with it or disagree with it, but I think in and of itself it has integrity. Let's then come to the part that doesn't have integrity, which is if you're undertaking that enterprise, trying to distinguish the Fed from the FTC is frankly indefensible. And the relevant question should be does the entity exercise executive power? And if it does, it is. It is. Power belongs to the President. And the question should be, is the person removable at will by the President who is exercising that executive power? The answer to that question is yes. The Fed exercises a great deal of power and it is really power of the Executive branch of the United States as delegated by the Congress of the United States. And the idea that you can whisper the words first bank of the United States, Second bank of the United States and make that problem go away is frankly beneath the intelligence of John Roberts and, and Brett Kavanaugh. And it kind of gives the game away. And what it says is we don't think the FTC is important enough or could do enough damage if the President willy nilly fires miss Slaughter. But boy, it would be terrible if he could do that to the Chairman of the Fed. And that's not the way the Constitution is supposed to work, and it's not the way the test that they've been talking about for the last 40 years has been supposed to work. And so I think the, the Slaughter decision is defensible on its terms. In its context, the Cook decision is irreconcilable with it, and their attempts to reconcile it are just sort of embarrassingly unpersuasive. And so I that then leaves the last question, which is how far are they willing to go with this? I presume you mean down the level of the civil service. And they conspicuously do not answer that question, but they do answer it by saying if the issue is really important enough, like if it affects our 401ks, we will find a basis to restrict the President's power, but if we don't care about the agency very much, then we won't. And so I think the answer to your question boils down to the question of how much does five justices of the Supreme Court care about the FBI or the Justice Department?
- [14:03]
A
Mike, did you want to jump in on that?
- [14:05]
D
Yeah, I want to tag off of Ben's last point, which is that if this does really go down to the working level of the civil service, you know, the sort of journeyman public servants that cap out at a GS15 on a good day, there's going to be a real consequence in the efficiency and professionalism of government that has unfortunately been sort of brushed to the side in a lot of these discussions. Because if you're given career employee, by which I simply mean somebody who does not obtain their rank or position by virtue of a political appointment, if that individual finds that they can just be dismissed for not having personal politics or policy preferences simpatico with the chief executive, it's an inexorable consequence that you're going to have more turnover in the civil service. And, and while that is probably a feature for those who think that the civil service should be this sort of invisible hand that helps carry out the President's preferences, it's going to be really deleterious for the collective subject matter expertise in government. Institutions have cultures, institutions have histories, institutions have lessons learned. And if you're turning over the mass number of employees every four years, you're by definition going to lose that. And there's going to be some regular reinventing of the wheel that has to occur on the presidential electoral cycle that is just going to inevitably cause inefficiencies in the administration of government. And these inefficiencies are going to have nothing to do with presidential policy Preferences, they're going to have to do with just not having the people in the office who know what levers to pull in order to make things happen. And while I in my youth was very sympathetic to the sort of formalist arguments animating the Slaughter decision, I think it's a bit irresponsible to ignore what. What could very well be the mass deprofessionalization of government.
- [16:27]
A
Yeah, two things jump out at me from this decision that is both the underlying pragmatism and kind of like a methodological hypocrisy that I think is really hard to ignore in this new originalist kind of like late stage Roberts court, which is that the classic critique we've heard of legislative history in the statutory interpretation context is that, well, you've got this whole universe of history judges just get to cherry pick and that therefore, you know, that's too much discretion to the judge. Got to stay close to the text. And then we're seeing this whole universe of these originalist cases that are leaning heavily on historical practice and tradition to define a scope that's not even actually often closely tied to the actual constitutional text or defines it in contours that have no textual justification. It's strictly historical practice oriented. We see in this context. We see it in the definition of cases and controversies in the transunion case, like you're seeing this super can only be described as kind of cherry picking of history. And it's kind of what you have to do if you're going to accept that there's any sort of contours and subtlety as opposed to the idea that the original generation was defining in super hard terms hard constitutional limits on Congress. I tend to be of the view that the framers that gave the Congress the necessary and proper clause authority, the idea that they're supposed to fill in what is necessary to exercise the federal government's role, probably didn't have a lot of intent, intent to put hard constraints on what Congress can legislate and the ways in which it was to adapt and address future concerns and future problems. Think about what Thomas Jefferson said about a revolution every generation and the fact that these institutions that we're establishing today, in their view, were intended to be malleable and mutable and subject to change to address what they understood would be very different challenges in the future. This just cuts against that whole tradition and it does it in a way that as you've articulated really well, Ben, I think is actually kind of arbitrary. Even if I agree with the outcome. I think it's good the Federal Reserve. And look, everybody thinks it's good the president can't remove Federal Reserve chairman from a pragmatic perspective. But it's really hard to reconcile with the underlying legal analysis in a very honest way. I think at least Mike and I want to come back to your point on the civil service. So what do you think we should make of this fact that we had the silence, the kind of deliberate silence, open silence about how far this goes down the civil servant chain? I think there's good cases to be potentially alarmed about it. Bednar wrote about that in Lawfare. I also, though, tend to see this as a sign that it's not clear that they had enough votes in the majority to reach that conclusion, which actually may not be a good sign for the idea that this actually deepens the unitary executive all the way down the federal bureaucracy to some extent. It's hard to reconcile that with the vision that they carved out. But we already know that vision is deeply compromised by both, certainly by the Federal Reserve case, by Cook, maybe by Pro Moto 2, although I think there's actually a principal distinction basis there that we should get into as well. So how alarmed should we be and how far down does that go and how does it enter into the actual context in which we're operating? Remember, we're seeing the Trump administration take a bunch of personnel actions and then backstop and attempt to give itself broader authority through the imitation of what was once known as Schedule F is now known as Schedule I can't remember exactly what the term is, scheduled policy making. And something, something where they're using statutory and regulatory authorities to assert broader authority over federal personnel that provides one vehicle by which the courts will never have to reach the constitutional question. They can say, well, statutorily and regulatorily, you actually do have this authority. And I suspect that's going to be a ground that's tempting for them, even though I don't personally like that outcome and think it very well might be wrong. How concerned do you think we should be from a legal perspective, how much we know about that, that that depth and the consequences opinion downstream?
- [20:28]
D
It's really difficult to predict where this is going to go with respect to lower level government employees. But I think in articulating why that prediction is so difficult, we can actually sort of draw out a theme that has animated the Roberts Court for quite some time now that does not get as much discussion as I think it should. And that is that one of the animating principles that seems to motivate at least the Chief Justices decision making process is keeping the Supreme Court's options open. This is a Court that has been very willing to overturn precedent in a way that I don't think we've really seen in modern jurisprudential history. And they're willing to do it in really unpredictable ways. There's almost a calculation about, at least on the Chief Justices part, and he's almost, and he's almost been open about this in public. There seems to be a real calculus going on with will overturning precedent x help or denigrate the Court's institutional authority in American life? So I don't think it's possible for us to predict how far this decision goes without knowing what is the public discourse going to be like at the time the Court reaches that decision. For a group of Justices who currently make up the majority that is very fond of claiming their school of originalism is the sheer application of neutral principles, there is a real selective imposition of those principles on a case by case basis that doesn't really jibe with what they're proffering as their overall philosophy. And I think what this is indicative to get to one of your other points more than anything is that what we're seeing is not originalism as a school of inquiry or originalism as a canon of construction with academic rigor. What we're seeing is originalism as a political project in which it's become no different from the legislative history arguments that they used to deride or the arguments to look at international law that Harold Coe was fond of making. It's just a new tool in the quiver. These people are not employing as their clerks people with professional historical training. They're not doing archival research. They're finding quotes from the 1789 or the reconstruction era that support their current day policy preferences and ignoring evidence to the contrary. That's not actually an attempt to find out what original meaning was. It's an attempt to find people who at the time of any given law's promulgation, agree.
- [23:44]
A
So, Ben, I want to come to you on this question because I think you have been an observer at times. I would say you feel free to object to this if you disagree. But a contributor, perhaps even a little bit of a fellow traveler of the conservative legal intellectual movement for the last that has been around longer since you've been thinking and writing about this stuff, longer certainly than I have, but for a number of decades now, centered around the Federalist Society, not exclusively limited to it. I'm wondering what you Think of where its future is after this decision. Humphreys was one of the big targets, one of the big points of consensus. It's almost, I would say, kind of like a litmus test for membership in the movement. Now you get this outcome, you get a decision that is there, solid in the actual slaughter. Opinion spells out, I think, what people want to see, but as you know, deeply compromised in the Cook case in ways that are hard to reconcile, that no one in the movement is making that much noise about. I don't think there are people who are saying, oh, it should have gone. This is a wrong outcome, too. But I don't think you're seeing a kind of main swell among conservative legal intellectual figures saying, nope, Cook was wrong, too. Which to me suggests that, as Mike said, insofar as you view this as a movement, a political movement, to some extent an intellectual movement, movements have momentum and they lose momentum, and they have cohesion, and they lose cohesion in ways that don't always map onto their ideological kind of justification frameworks. So how much juice is left in. Are there other big targets that are still big motivators for this movement? Has the Trump era, and, frankly, the excesses of it that are hard to ignore, I think, for a lot of people, fragmented it. We know many founders of the Federalist Society, while the Federalist Society itself has plenty of people still feeding the Trump administration. We know a lot of prominent figures have broken with it and broken from the Trump administration, become notable critics of it. So, yeah, Ben, tell us a little bit about that.
- [25:36]
C
Yeah, so look, I think the conservative legal movement at its best was organized around a set of principles, and people debated about what the core and what was marginal to those principles. But there were a set of things that a group of people believed. And the problem with Donald Trump is that he insists that nobody around him is allowed to believe anything except him, and that is irreconcilable with principles of any kind. And so it forces a movement like the conservative legal movement to fracture along fidelity to what it is that one actually believed, or fidelity to Trump and to what is good for him and what he wants and what he says. Most of the movement has responded to this the way most of conservatism has, which is by buckling and being grotesque and objectionable, a significant swath of the movement has broken off and gone and done other things and sometimes very honorable things. So Peter Kaisler, who was one of the founders of the Federalist Society, is now the founder of the Washington Litigation Group, Right. Which George Conway is doing the George Conway things. And the Society for the Rule of Law people, a whole bunch of whom are associated with lawfare in one way or another, are doing great stuff. So I don't think there is a movement anymore. I think there is a group of people who call themselves the conservative legal movement, who have mostly just gotten behind Donald Trump. And there are a group of people who continue to believe the things that they always believed, but have in many cases decided that the basic functioning of the rule of law is a precondition for any of those things. And so and so I'm not sure it makes much sense to talk about the conservative legal movement anymore. There are the organizations that formed it, the FedSoc and others, and there are the people who made it up who've gone in, as I say, in a lot of different directions. And then there are, of course, the judges of it who've also gone in very different directions, sometimes very different directions than themselves. So Karen Lacraft Henderson on the D.C. circuit, is one day seems very passionately in defense of anthropic, also wrote the lower court opinion denying presidential immunity and has written some opinions that seem very Trumpy in other areas. Right. So, like, some people have a genuine and I assume, sincere internal division. So I don't know. I think I don't know what the future of it is, except that I don't think it's a single movement. I think it's a lot of different shards that have gone in a lot of different directions and will continue to.
- [29:13]
B
Okay. I actually want to step back for a second and think about the Supreme Court's term more broadly. And I'm curious what you all think specifically about the impact of the immunity decision, which was handed down roughly two years ago now, which is kind of hard to believe. It feels like it's been one minute. But, you know, I'm just curious, looking at the Supreme Court's recent jurisprudence as a whole, what has the impact of the immunity decision been thus far? Is it more or less of an impact than what you might have expected when that decision was handed down two summers ago? Anyone have thoughts on that?
- [29:57]
C
I will just say there are two impacts. One of them is easily discernible, the other is not. So the easily discernible one is that Donald Trump has not tried to go after Joe Biden. And given what he's done to other political enemies, I think that's probably because somebody has whispered in his ear, you can't. And by the way, ditto Barack Obama. So that's probably an effect. The second effect is not discernible, and I have my suspicions about what it is. But how unbound Trump feels as a result of that decision may be fueling his tirade of lawlessness more generally. Right. Particularly on the corruption side. Now, in order to know that for sure, you would have to have an internal view of his subjective perception of what he is now allowed to do. But I think it's fair to say he's much more lawless than he was last time, and he does not seem to fear anything. And last time we had to ask is that because he will pardon himself. And this time we don't really need to ask that question because the Supreme Court has kind of done it for him. So I think you can see the effect with respect to Obama and Biden, and you can. You can intuit the effect with respect to Trump's feeling unleashed.
- [31:38]
B
But what about the Supreme Court itself? Did you expect that there might be more citations to that opinion in the court's decisions around presidential power? Because that opinion seems to be like. It has such a kind of transit. Like it, you know, transferable to all types of different decisions about presidential power, not necessarily in terms of the immunity itself, but just in terms of some of the principles that the court articulated in that decision.
- [32:11]
C
I'm not sure, to be honest. There's a lot of verbiage in that opinion that if you take it not as dicta, but as, you know, if you imagine that it was a holding, would be quite sweeping in terms of the preclusive powers of the president. You don't need any of that to resolve any of the Slaughter or Cook or other presidential power cases or any of the immigration cases that we haven't talked about, but were all resolved in favor of the president's power. And so the fact that they're not, it doesn't play in that, doesn't necessarily mean anything. That said, look, I think this court has a major thumb on the scale in favor of the president, at least when the president is a Republican. And you would do well not to litigate on any other premise in an appellate court in the United States, because, you know, they will appeal. The court tends to grant cert in separation of powers matters, and they tend to win. So I. I think the mood of it is certainly transferable, even if the doctrine doesn't demand it.
- [33:43]
D
Yeah, I think your question actually, for me personally, ties together a lot of the different strands we've discussed in this episode thus far. I think I'm the only one of us present who would have considered himself a card carrying member of the conservative legal movement. And you know, even now there is not a Trump nominated justice whose stated judicial philosophy, as expounded upon at their confirmation hearings, I would disagree with. But what we saw with the immunity decision is that that stated style of cautious, limited interpretation is readily thrown out the window when it is not convenient for larger political projects. Ben's right. They very much have their thumb on the scale. Sometimes it is dressed up in originalism. And again, I'm still sympathetic to that movement. But what we saw with Trump v. United States is they're also willing to create doctrines out of whole cloth, to be frank, when it suits them. And to me, the biggest second order consequence of Trump, the United States actually has nothing to do with the exercise of presidential power or its effect on Donald Trump's psyche. I think what it signified more than anything was the Supreme Court publicly stating its willingness to thrust itself into debates that traditionally it would be a little more cautious to get into. And we're seeing that now with a lot of decisions that indicate the docket itself is being shaped by not what are the cases and controversies most live for the nation as a whole, but which are the ones most important to the executive branch, and which ones do the Supreme Court think that they should exercise their influence upon?
- [35:57]
A
Yeah, I'll take a slightly, maybe more generous perspective of the court than Ben and Mike on this. I do think feeds in here a little bit. Trump from the United States more than anything was just a very confused opinion. It was very unclear on what it was saying. It was a complete patchwork. It was internally inconsistent in ways we talked about at the time. And it hinted at a lot of broader ideas without clearly having the sense that there was the full extent of what could be read out of the language in the opinion actually meant what it meant when we read at the time. I believe we. I can't remember if it was me specifically. Certainly some people on this or another Lawfare podcast hypothesized that it had been amended substantially late in the game because parts of it did not hold together or read together, and it seemed like parts may have been cut out. I think we're this specific theory that maybe at some point there had been some willingness to join parts or concur in parts by Kagan or someone else that then pulled out and that ultimately led to this kind of bolder language whose full consequences are never really clear. My suspicion is that Trump of the United States actually probably doesn't mean as much as we Fear it meant. And that's kind of been my suspicion the whole time. Because for something to really mean as much as we want it to mean, there has to be, as the language it uses might suggest, you have to have a sense that it has the consequences behind it, particularly when a lot of it is essentially dicta in these cases, or at least really close to it, its direct relevance to the holding is really limited. For the record, I think that's also a lesson to be taken on Slaughter and these other cases that you can read Slaughter really, really broadly. But it's not clear to me that all the justices who join Slaughter have the full conviction to read it to those full consequences. In fact, when you see, I think the efforts to do things like say, oh, we're not specifically reaching this issue about downstream people, yes, you can read the logic of Slaughter and say it should reach those people. But if all six justices were on board with that, I think they would have done that more clearly or signaled things that much more willingly that way. I suspect some weren't willing to join and maybe not even five, which is really what we care about. So I'm not that surprised. I will say I think the administration actually has done more with Trump of the United States and the logic behind it than frankly people give it credit for. I know Jack Goldsmith wrote a piece on this, who originally posited the use of Trump v. United States in the separation of powers context as being potentially substantial within the executive branch at the time. And he wrote a piece more recently for Executive Functions, his blog with Bob Bower about saying essentially, oh, actually I'm not sure I was right. So far we haven't seen much in this trend, although I think more will be coming down the line, which I generally agree with. But I think he's almost selling his thesis a little bit short. A lot of parallel logic, you see the Trump administration really leaning in on. Think of executive orders that assert far reaching executive power over not just the Justice Department, not just litigation positions, not just law enforcement action, but a variety of other executive functions. The thing is that the most compelling parts of Trump of the United States intersect with the broader unitary executive argument. It's just the clearest, most recent example of that up until Slaughter and Cook. Right. And you don't always need to cite the case directly to have those implications, but I think you can see how the administration really leaning on those arguments. And part of the reason, not the only reason, but part of the reason it's probably confident able to do so is because it can cite Trump of the United States, particularly in the DOJ law enforcement context, I would not have the confidence that's going to withhold if it's subject to judicial scrutiny. And most of the times it's window dressing.
- [39:22]
B
Right.
- [39:22]
A
It's not something that's like because Trump of the United States, that relevant language is largely dicta. You're not actually relying on it and courts don't feel the need to repudiate it directly. So I don't know. I think it's doing more, there's more work there. But it's primarily as a rhetorical support. You see these arguments that the administration was available to them anyway and probably was going to make anyway that they're leaning into. And those arguments are definitely there. But I don't know if Trump v. United States was ever going to be the bulwark we thought it was going to be precisely because it's it's such a confused opinion in the first place. Well, let us go from one branch of the government to another, from the Supreme Court to the executive branch. And one particularly relatively new compared to other parts of the executive branch part of it that is the office of the Director of National Intelligence, which has been going through a very tumultuous period over the last month. We of course have seen the first Senate confirmed Director of National Intelligence Tulsi Gabbard resign, initially aiming for June 30 resignation, then bumped up a little bit the president to around June 19, at which point we saw Bill Pulte, a known loyalist to President Trump, most well known for using his role in a federal housing agencies to essentially use records in ways that many people suspect and believe in some cases being litigated or investigated by various parties improperly to dig up information that provided the basis for attempts to of criminal conviction or at least allegations against several perceived enemies of President Trump, ranging from Jim Comey to Adam Schiff to Letitia James, none of which have really borne fruit yet. But that we have seen the basis for at least criminal prosecutions in the James and Comey cases and investigations which have since largely puttered out. So now we have him in charge of odni. President Trump is taking a position that even his own party does not seem very happy with, although as per usual, they're a little hesitant to criticize him openly. We know we've had people criticize Pulte ranging from John Thune to other people suggesting that he's not a serious person or a serious candidate. We need a serious person and candidate in this position that led to the nomination of Jay Clayton, but that now has been slow rolled, held up. We don't know exactly where that's going, what timeline. We've seen an effort on Congress's part to withhold 702 authority, something the executive branch has traditionally been very intent under both parties, under every president, of securing in one form or another for national security reasons, saying, we can't give this to you if you're going to have Bill Pulte, a loyalist, in charge of odni. And that was not enough to get President Trump to budge his position. And now we're seeing a range of personnel actions and other efforts to do things that appear to be to slice ODNI down to size, something that Tulsi Gabbard could have done at the president's direction. There's no report that he didn't want to, but now appears to be part of the Trump administration's agenda for the agency. Mike, you wrote about this with our colleague Julia Curley in a piece last week. Talk to them about what you guys observed as two intelligence communities, community veterans from slightly different perspectives, what you observe about this, the dangers that arise from this, and what it tells you about the state of the intelligence community and national security more generally under this current iteration of the Trump administration.
- [42:41]
C
Yeah.
- [42:41]
D
So I generally have two thoughts which at first glance are going to seem like they're in conflict with each other, but I'm going to do my best to reconcile them because I think they both provide a good way of understanding how we should think about odni. Just in theory. The first is, and this is widely shared by many members of the intelligence community, is that like ODNI to a very large extent is sort of a non issue. There is a former CIA case officer who is very active on social media and writes stuff himself, who, for example, when Joe Kent was controversially nominated to be the head of ODNI's National Counterterrorism center, this former case officer response was just sort of a tossed off. Well, NCTC doesn't actually do anything, so it's not a big deal. And I think that's the view a lot of people who are involved in intelligence community operations have about odni. Its responsibilities are mainly administrative. To the extent it exerts a real influence on other members of the community, it's through things like analytic standards and sort of the administravia of making judgments based upon intelligence that is collected by its constituent agencies. So in that sense, like we shouldn't give ODNI much thought. But at the same time, odni, by virtue of being that sort of analytic referee, has access to a lot of intelligence. And when you have access to a lot of intelligence and you also have the legal authority to declassify and release much of it, in part or in whole, you can do a real lot of reputational damage to people you don't like. You can essentially take raw reporting. That's something that the intelligence community has collected and has not analyzed or broken up itself. In other words, it's a recording of a conversation in a foreign country that has not been manipulated. It is an intercepted email. It is something that the community possesses in unadulterated format. And simply by exercising your declassification authority in a way that also makes you an abridger of that raw reporting, you can really shape the public's perception of things. So, for example, and this is a hypothetical, if we overheard a conversation going on between policymakers in Iran indicating that they wanted to interfere with the next round of midterm elections, that conversation might be two hours long. And at the end of it, the senior ranking official in the room might say, I understand your motivations for wanting to do this, but on a balancing of the equities, it's not a wise idea and we're not going to go forward with it. But if you just declassify the opening 15 minutes of that conversation where they're spitballing this idea, you can make it look like they actually are trying to interfere. And I think that's what a lot of us who served in the community are worried about. Bill Pulte. He has been able to see mortgage fraud in documents that are wholly innocuous and convinced the Department of Justice to open investigations or seek indictments.
- [46:28]
C
That's exactly what somebody who's committed mortgage fraud would say.
- [46:34]
A
New homeowner Michael Feinberg. One home or two, Mike? That's the real question.
- [46:39]
D
No, but, but, but there's a real danger in having access to lots of reporting and having the ability to selectively release it, even if you're not the one collecting it. And what Julie and I tried to explain in this piece is that a lot of this was, if not inevitable, at least a possibility that was baked into the legislation that chartered odni. Like a lot of legislation that is promulgated in response to an emergency or a black swan event, it was probably done hastier than it should have been. And while there was some pushback, largely from Duncan Hunter at the time, against the creation of the office, like there wasn't a real lot of vigorous debate, or at least not as much as you would expect for a wholesale reconstruction of the intelligence community. And as a result, I just think the Intelligence Reform and Terrorist Prevention act of 2004, which established the position of the DNI in the office, didn't really consider what could go wrong. There was a, there was a desire after the completion of the 911 report to have some sort of legislative response to the deficiencies the report identified. And they moved quickly. And I just don't think as much thought went into it as there should have. And as a result, you now have this agency that has oversight of the entire intelligence community, but not a lot of guidelines limiting its discretion in how to use that authority. And I just, I fear we are in for politicization and weaponization of intelligence collection and analysis in a manner that has really been unseen in this country since the missteps and just bad actions of the intelligence community that led to the Church committee in the 70s.
- [48:49]
A
Ben, what about you? Let me turn to you on this as somebody who's an observer of the intelligence community. The last several years. We've got this kind of extraordinary circumstance where arguably you're seeing different pressures in different directions. Effort to weaponize ODNI potentially expected. I don't know if you've seen clear signs of that yet under Pulte, although there are arguably cases of that under Gabbard, under a much longer tenure. Now, this effort to dismantle it, break it down oddly, a year plus into the second Trump administration, a very kind of like doge like effort, if you will, resembling a lot of what we saw the administration pursue in other agencies, but happening far later with a strange impetus coming as if from nowhere. Because I don't think it was ever mentioned as being on the administration's radar that breaking down ODNI was really a point of concern until mid June when Tulsi Gabbard's resignation became known. What do you make of it? Are you concerned about the same things, Mike? Is, does it run in a different direction or is there maybe other longer term considerations like 702 that we need to bear in mind?
- [49:55]
C
Yeah. So look, this is going to sound glib, but I actually kind of mean it seriously, which is if Bill Pulte is going to be the head of ODNI on any kind of medium term basis, the best thing he could do would be to dismantle it, because the alternative is having him use it the way he used the Housing Administration, which is to say to dig political dirt on his enemies. And the country got along fine for 200 years without an ODNI. And I would rather have the office dismantled than have it fully functional in, in really bad hands. So just to remind you of the degree to which we have slid down the slippery slope in Trump won. Trump nominated a man named John Ratcliffe to be dni. And this was considered scandalous by people like me because Ratcliffe was completely inappropriate for the job. Ratcliffe, who is now, of course, the CIA director, is the grown up in the room today. He's the CIA director who's, you know, secretly making sure we continue providing intelligence support to Ukraine. The CIA is not functioning well right now, but it's not in free fall, disaster the way other components are. And by contrast, we have an FBI that, you know, used to be run back in the bad old days of the first Trump administration, was run by the, the blander than milquetoast Chris Ray, and is now in the hands of Cash Patel and odni, which we were terrified was going to be wrecked by Ratcliffe. We would, you know, bring back John Ratcliffe to odni. Except that of course, then he would have to give up CIA and that would have intelligence consequences to our allies. So, I mean, I think how far we've gone is, you know, just since Trump won in this area is actually kind of hard to overstate. And in light of that, I'm not sure that the. Look, I don't favor tearing ODNI apart or at least not doing it it without appropriate deliberation about what functions are moving where and how you're doing it. But there was always a question about whether ODNI was a good idea or was a bad idea. And I think if you were going to put in it people of the caliber of McConnell or Avril Haynes or people just who were of extraordinary capacity. Yeah, it's better to have a DNI than not. Right. If you're going to put it in the hands of Bill Pulte, it's better not to have the office than to have it. And so I do think, you know, to a certain extent, form follows function here. You know, if you're going to put the DNI's office in the hands of Pulte, then it should not have 702 authority and it should not maybe exist. I'm not sure. So I'm not what I, I guess it's, it's upsetting to watch him do the things that he's doing, but I'm not sure that I don't prefer it to watching him, you know, turn the ODNI into a mortgage fraud investigation outfit.
- [53:49]
A
Well, it's worth noting one piece of late breaking news on this that came out just late in the day yesterday. I think we started seeing meteorologists reports indicating that the Senate Select Committee on Intelligence has or is reportedly. I haven't gotten to look in the calendar to see if it's posted yet because the actual media report I'm seeing is a little dodgy on whether it's completely public that's happened yet. But it says that the chair, Tom Cotton, has scheduled a confirmation for Jay Clayton, the current acting or until recent, I should say acting U.S. attorney for the Southern District of New York, former SEC chairman, who has been nominated to be the permanent ODNI for July 15th. That'd be next Wednesday, I think, for the next week. I haven't looked in the calendar to see if that's official yet. But notably, that is a little bit of an indicator that there may be a little bit of thawing on the Trump administration's position if this is going forward. Notably, never polled Clayton's nomination formally, as far as I'm aware. Normally there would be some sort of public record of that that I haven't seen reported, in which case I'm not sure that the Senate can't proceed with confirmation hearings until it's formally pulled on its own schedule, although of course, Clayton may choose not to participate.
- [54:58]
D
Scott, I want to insert element of measured pessimism to what you just noted. Jay Clayton coming in following Bill Pulte is sort of, to me, like Pam Bondi being nominated after Matt Gaetz's nomination to AG was shot down. I realize it's not a complete parallel because Pulte is merely acting and not formally nominated, but, you know, Clayton has two major things going against him. The first is the Intelligence Reform and Terrorism Protection act, which statutorily lays out the requirements for the director of National Intelligence, explicitly states that the position should be held by somebody with extensive experience in the intelligence community. I'm sure Clayton supporters will argue that in his capacity in sdny, he's dealt with national security prosecutions. But prosecutions are not something with which ODNI is traditionally involved, and he has zero experience in the national security community. The second thing is he's shown the same tendencies as many other Trump nominees, including Gabbard, including Pulte, to engage in conspiracy theorizing. He has made allegations about California's elections, which are outside the scope of his duties as a U.S. attorney and are matters on which he has zero firsthand experience. You do not want somebody, somebody who is willing to opine on things about which they know nothing, to be in charge of an agency whose very purpose is to enforce analytic rigor upon judgments that are going to affect U.S. policy. So even if Clayton has his hearing in a week and gets confirmed, I'm not quite willing to yet put up the bunting and celebrate because it's not clear to me that we're going to be in any materially better position.
- [57:11]
A
It's a fair assessment, but I suspect that there's going to be a lot of pressure on people both to swallow Clayton's nomination, even though they may object to it, and frankly, to get 702 reauthorized in some form or another. So my suspicion that we're going to see it move very quickly if and when they can find some sort of bridge between the administration and the committee and the broader Senate it and that 702 reauthorization of some form, always a controversial topic, but of some form will follow relatively quickly after that. But we'll see, in part because I suspect, I think they've said this specifically in this reporting. All the members of Congress have all want to get it done before the August recess. So we'll see. So the end of July may be a little busy for intelligence heads and people watching stuff around ODNI and 702, but keep an eye on that in the weeks to come. And at that hearing, possibly scheduled, still haven't 100% confirmed, but possibly scheduled for next Wednesday. Before we break, we need to turn our eyes to New York, to Jay Clayton's home district, but not in the federal courts, in the state court system, where we are seeing a couple of actions, including some trying to move these actions, that actions to the federal court system surrounding President Trump. There we have, of course, the criminal conviction of President Trump, the sole surviving, well, the only criminal conviction of president kind of sole surviving legal action against him on a variety of financial crimes measures relating to the manipulation of documents around payments to Stormy Daniels over an alleged affair. A key witness in that trial was Michael Cohen, President Trump's now notorious fixer at some point early in his administration and in his private life before entering the White House the first time around. There's also a related civil judgment for penalties related to the criminal conviction arising from the criminal conviction, or at least the facts of and conduct underlying the criminal conviction, I should probably say more properly. But we have seen this pretty dramatic kind of development turn into Michael Cohen Somebody who briefly emerged as kind of like a lion of anti Trump sentiment. One of these briefly, weirdly valorized figures that popped up repeatedly during the first Trump administration came out, was a lead witness against President Trump, served prison time for allegedly lying to Congress in earlier testimony. Was a key witness here. Had a kind of long history of criticizing President Trump coming out and opposing him, saying that he was persuaded in part by the views of his daughter and his daughter's objections to some of the corrupt things happening to be involved in this. Now claims to have had this dramatic thawing of relations and re embraced by President Trump that's led to him returning to have a radio show on a conservative radio network. And I swear, I swear he had a podcast or another radio show on a, a left leaning radio network or podcast network just a couple of years ago. So the man is truly all over the place.
- [59:57]
C
I was invited on his podcast.
- [59:59]
A
You were? I think I vaguely remember this.
- [60:01]
C
That's right. I didn't go.
- [60:03]
A
Interesting.
- [60:04]
C
I mean, yeah, I probably still have the correspondence from that, but I declined.
- [60:09]
A
Well, see if you can get on his new one, I guess. See at the radio show.
- [60:12]
C
I will decline again.
- [60:15]
A
It is a. Has been a wild ride for Michael Cohen. Anna, you have been looking at this case and thinking about its intersection with the two preceding New York cases. Talk to us a little bit about that and how this all fits together and how this reconciliation may relate to the ongoing legal actions.
- [60:32]
B
Yeah. So keep in mind, I think this sequence of events is important here. We actually got our first signal that Michael Cohen was making what some might call a heel turn, depending on, you know, how you view this turn. But this first happened back in January actually, when Cohen, who as you mentioned, you know, previously like had a podcast or a radio show with, I believe it was affiliated with the Midas Touch Network, which is a huge, huge, you know, left leaning, left affiliated media organization. Had a substack that had a lot of a base audience that was like quite left leaning because of his in recent years criticism of Trump and had many thousands of followers on that sub stack and still does, but he posted a sub stack back in January in which, and this is in the wake of, keep in mind an appeals court ruling in which essentially the appeals court said, okay, federal judge, the district court, Judge Hellerstein, you need to reconsider yourself this question of whether Trump's appeal of the hush money conviction should be removed to federal court because of the immunity rulings. There's been this kind of live question of, you know, could Trump's team remove from state court to federal court on appeal in light of the immunity ruling. And so that is about to go back down to Judge Hellerstein. And in the wake of this opinion, Cohen posts a substack in which he, quite bizarrely, if you were someone who watched this trial and, and as Ben and I were said, you know, I felt like Alvin Bragg and then also in the civil fraud case, Letitia James, that their teams, you know, pressured and coerced me to testify to facts in order to convict Trump or to go after Trump. You know, he emphasizes that he was subpoenaed. You know, kind of tries to suggest that both him and Trump are victims of. Of this process. And it's, it's really bizarre because Michael Cohen had been such a prominent critic of Trump for so many years, had been a key witness in the trial, both of those trials. So he does this. And in the intervening period, you know, there's all this litigation that's going on on the criminal side. You have two tracks. There's the federal track, like I mentioned, is which with the removal issue, but then there's also just an appeal in state court that is now at the intermediate appellate court in New York of his conviction there. And it all feels a little bit at that point like maybe it's geared towards, you know, it's not clear why, what the motivation here is, but it. It feels like it's maybe motivated towards extending an olive branch to Trump because this is all coming amid these politicized prosecutions. And you have to wonder if maybe Michael Cohen thinks to himself, oh, you know, they're going after Brennan, they're going after Comey, they're going after all of these people. What if I'm next? Of course, that's just speculation, but it was a really kind of bizarre turn, the most recent happening since then. And the news that we got this week is that Cohen and explains a little bit more about this reconciliation in which he talks about, you know, six or seven months ago. So sometime around the time that he made this substack post, it's not clear if it's before or after a friend, an intermediary, according to Cohen, you know, reached out to him and said something to the effect that, you know, Trump was sympathetic to some of the criticism that Cohen had been getting in the wake of Cohen saying that he never observed interactions between Trump and Epstein. And so that kind of initiates this opening of communications between Cohen and Trump. And according to Cohen, they are all, you know, have completely reconciled. And in fact, it was Trump, who recommended Cohen for this conservative radio show gig that he now has on, on this radio program. I will mention as well that although we haven't really seen the substack post and Cohen's public statements about this come up much in the criminal context, it has come up very much in the appeal of the civil fraud judgment where Cohen was also a key witness witness. And in that appeal that was filed, the brief was filed by Trump's team back in April. They specifically cite Cohen's substack post as a way of arguing that the trial court judge was wrong to credit Cohen's testimony. And, and so, of course, that has been at play in that appeal related to the civil fraud judgment. I am not entirely convinced that this is going to be a huge factor at all in the civil fraud judgment or the criminal case appeals in terms of the actual, because the legal issues are so different, and that's such a discretion of the trial court and of the jury to credit the testimony or not of, of witnesses. But I certainly do think that in terms of the public narrative that Trump has created around these cases about them being witch hunts, politically motivated, it does seem to really give him some ammunition in terms of just crafting a public narrative around it. But, Ben, Mike, Scott, I would be curious as people who all followed these cases, cases closely as well, especially Ben, you were there at the trial. I mean, what do you make of all this?
- [67:11]
C
Well, I have one question, which is what did Michael Cohen testify to that he now says wasn't true?
- [67:22]
A
That does seem like the key question.
- [67:24]
B
Yeah, he doesn't. And actually he doesn't say. And this is one thing I noticed in reading, in reading his substack is that he actually doesn't say that he testified untruthfully. He says, I felt pressured and coerced to only provide information and testimony that would satisfy the government's desire to build the cases against and secure a judgment and convictions against President Trump. So he's not actually saying that he was pressured to testify untruthfully or falsely. He's saying, I just felt pressured to
- [68:05]
A
testify, almost like he had a settlement agreement with the government.
- [68:09]
C
I will say a few things about this. The first is that it is definitely true that Alvin Bragg's people pressured Michael Cohen. They pressured him to shut up because he was talking so compulsively on his podcast and saying insulting things, saying things that were causing, you know, motions to be filed, saying things that could discredit his testimony that there was. And Anna, you may remember details of this that I Don't. There were repeated conversations between the prosecution, the defense and the judge about what could be done, if anything, to prevent Michael Cohen from keeping on doing these out of court statements about how much he hates Donald Trump.
- [69:01]
B
And not just Donald Trump, but also Donald Trump's lawyer. Because remember, famously or infamously, Todd Blanche's first question on cross examination of Michael Cohen in the this historic criminal trial
- [69:17]
C
was say that I'm a.
- [69:19]
B
You. You called me a crying little shit on Tik Tok, didn't you?
- [69:26]
C
And so like the idea that there was pressure from Alvin Bragg and it was to be less ebulliently hostile than Michael Cohen was natively. Look, if Michael Cohen wants to come out and say I testified to X and it is isn't true, or if he wants to say I didn't testify to X, I withheld it though it was responsive to a defense question on cross examination because I was pressured by Alvin Bragg or Letitia James, I'm all ears. But if he's not going to say something along those lines and he's merely going to say I felt felt pressured, I am going to respond that facts don't care about your feelings. And you know, you're a witness in a criminal trial and a civil case. You swore to tell the truth, the whole truth and nothing but the truth. The record is closed unless you are claiming that you didn't do that. So that is my view of, of the matter. I do think that it is great when people can reconcile. And so it's if Trump and Michael Cohen can come together in a joint scheme to make money for Michael Cohen at the expense of MAGA people, God bless and may they prosper in their business ventures together. I fail to see what this has to do with either the criminal case or the civil case on appeal.
- [71:08]
D
Without more, I am generally inclined to give Michael Cohen as much thought and intellectual efforts to understanding as I am to the Kardashians or with respect to at least one of our co hosts, Taylor Swift's Wedding. But I do want to point out
- [71:28]
C
that was not directed at Scott or me. Let's just put it that way.
- [71:32]
D
Look, I think it's important to contextualize Cohen's initial testimony. This was not a one off of him under pressure from a local prosecutor testifying against Donald Trump. This was the culmination of a campaign he himself launched against the then president in an effort to rehabilitate himself himself. And if you look at his statements before Congress, the guy gave a 30 minute peroration on what a wretched human being Donald Trump was. And what a mistake in character it was for Michael Cohen to be swayed by him or fall under his spell. This is nothing more than when Donald Trump's son was rising. Michael Cohen was happy to be an attorney and a fixer. When Donald Trump's sun appeared to be setting, Michael Cohen was happy to be a penitent apostate. And now that Donald Trump is back in power, Michael Cohen is trimming his sails again. I don't think we need to give this too much thought other than to say that Michael Cohen is a protean person without many fixed principles. And as those are generally the type of people who choose to become political fixers, none of this should surprise us.
- [73:03]
B
I will also add too that, you know, so one thing that I alluded to earlier is just that the things that are at issue on appeal are very discreet legal arguments that really, other than the one I mentioned in the civil fraud brief, brief really don't go to the question of relitigating the credibility of the witnesses. But even if that were in question, I, I will add that, you know, Michael Cohen was just one part in the hush money trial and the civil fraud case. Of those cases, his, his testimony was corroborated a lot of other evidence. And. And what? And his testimony was corroborated by other evidence as well. Well, and so I, I don't, you know, I, I want to disabuse the notion that he was the star witness or the sole witness that provided the evidence that led to Trump's conviction. Because I, I mean, we sat in court for weeks and there was a lot of other evidence.
- [74:11]
D
So yeah, I think we should agree that it's the real world, not his own head. Michael Cohen is functionally the Rosencrantz or Guildenstern of Trump's Hamlet. He played a minor part in a walk on role and yes, there is a universe maybe authored by Tom Stoppard in which he is this star, but he's a bit player most audiences are going to forget the minute they leave the theater.
- [74:36]
C
I will point out that Michael Cohen is still alive today.
- [74:42]
D
So are Rosencrantz and Guildenstern for the majority of stoppers play.
- [74:47]
A
I will, I think we will have to leave the conversation for that time, but I will, I will just want to close the loop on one point that Ben got out. But I don't think you've underscored this exact point, which is that I think to reopen anything here, it would have to be a lie. And for Cohen to Actually confirm there's a lie here? It would be confirming that he committed perjury. So you'd be shifting criminal liability from the president onto himself. I'm not sure his newfound reloyalty necessarily runs that deep. But we will have to wait and see. For now, we are out of time on Rational Security. But this would not be Rational Security if we did not leave you with an object lesson to ponder over in the week to come until we are back in your podcatcher. Ben Wittes, what did you bring for us today? No mulligans? We've already spent your mulligan for the year.
- [75:30]
C
Now, I have an object lesson that involves not one one, not two, but all three of the other Rational Security hosts today.
- [75:40]
A
Ooh.
- [75:41]
C
So, as listeners may know, I have spent the last several weeks, last couple months, really building a tool called Ragtime, which today did something that I am fairly sure that no other tool on the planet could have done. And so first, how does it involve Scott? So yesterday, at Scott's suggestion, I loaded the entire Ofax sanctions list onto Ragtime. That's every sanctioned person and company. And I put it in the same searchable database as the complete federal court dockets database so that you can now cross reference things between them. Now this brings me to the second person on the show, Anna Bauer, who this morning I offered to give a demonstration of Ragtime. And when she said she wanted it, I asked it the following question, thinking of Scott from the previous day, which sanctioned individuals right now have pending federal litigation. And I just asked it that question. Now this is where it brings me to Mike Feinberg, who was the person in this that I did not expect to be involved in this. Let me read you the results of this search. It found Oleg Deripaska, the Russian aluminum oligarch who has a pending criminal case in Manhattan. It found Huawei in an active criminal prosecution in Brooklyn. And for those of you who don't know this about Mike Feinberg, Mike kind of ran a big investigation of Huawei back in the his FBI days. It found a Venezuelan state oil company tangled in a whole cluster of live cases. In Washington, it found Iran's national oil company fighting in federal court. In Texas, it found sberbank, the Russian bank who have been sued by a bunch of passengers killed in Malaysia Airlines Flight 17. It found Hikvision and ZTE, the Iranian guard corps. And underneath these marquee names, it turned up literally hundreds of sanctioned drug trafficking figures who are sitting as defendants in federal criminal cases right now. And it spat all this out in response to a single sentence query that I relayed to it from Anna Bauer and thereby brought all the co hosts of this Rational Security episode together in one object lesson.
- [78:42]
A
It is truly an extraordinary tool, one that Ben has been frankly the driving force behind that we've all gotten to play with and are playing with and developing different ways to use in the future. And of course you can play with this tool in beta format if you are a material supporter of Lawfare. Worth noting before we part here with some instructional videos Ben has there. But I'm excited to see these results for myself, Ben, when we get off the call. Not least because I'm working on a piece on Venezuela where this case might be particularly relevant. So we'll have to dig into that. Mike Feinberg, what did you bring for us for an object lesson today?
- [79:15]
D
So I may be violating object lesson rules because what I'm going to talk about doesn't exist yet, but has been announced and that is the Criterion Collections new box set of every extant work, including short films that have never been before seen of Stanley Kubrick. I pre ordered this within about 30 seconds of the announcements. It contains every film of which people are aware. It contains his first film, Fear and Desire, which he was ashamed of and went to great lengths to keep out of circulation for nearly half a century. And it contains the Criterion Collections usual smorgasbord of extras, including a now difficult to find documentary about the making of the Shining, directed by Kubrick's daughter. I'm looking forward to this just for the sheer aesthetic value of watching a Kubrick film, but also because my son's about to turn one and I think it would be a great father son experience to sit down in his youthful years and, you know, maybe watch Eyes wide shut or Dr. Strangelove at the tender age of two.
- [80:32]
C
What is your favorite Kubrick film?
- [80:35]
D
I'm gonna get a lot of grief for this one, but the one I go back to the most often is the one most people can't get through, which is Barry Lyndon. Notable mainly because Kubrick did not film a single shot using artificial lighting. He had Kodak develop special lenses which could make the entire film photographed by candlelight or sunlight.
- [81:03]
A
Fascinating things you didn't know.
- [81:05]
C
You listened to rational security to find out.
- [81:08]
A
There you go. Why was slightly more low brow commentary? Because I want to talk about something I got to do on vacation last week. Week for my object lesson, that is drink beer, which I like beer. Unlike at least one of our Supreme Court justices, I like beer.
- [81:22]
D
Do you still like beer?
- [81:23]
A
I still like beer. He may not, I don't know, but I'm still a fan. I don't get to drink it that often because I am a middle aged father of two young kids and frankly, if I have one beer it will put me to sleep and give me a headache the next day. But on vacation I was able to indulge. I was in beautiful Grand Lake, Colorado doing some hiking and hanging out with my kids and my in laws up there. I was amazed to find what has become my favorite beer. Setting aside Wheatland Springs local brewery here in D.C. area which is amazing, highly regarded, mostly the beer I drink, but if I don't drink Wheatland Springs, there's one other beer I drink which is a beer called the Montucky Cold Snacks, which is an amazing lager that I thought was brand new. Then when walking, at least in the east coast, it's really only appeared in the last year or two. Then when walking around Colorado, not only did I see a sign for Montucky Cold Snacks, I saw a bar advertising buckets of cold snacks as if it was well known and well regarded enough to put it on a chalkboard outside for the use to be drawn in by this. And I asked my substantially younger brother in law, hey, what is this? Do you guys drink these cold snacks? He's like, yeah, they've been around for years. Because it turns out on the west coast, or at least out west in different corners, it has been really prevalent in a popular beer to the point that you can sell buckets and advertise buckets of cold snacks. And it is something that draws people in. And this all led me down a rabbit hole investigating this beer beer, which is a genuinely amazing beer in that it is delicious lager but with a little bit of hop, a little bit of malt, a really balanced, super, super flavorful. Highly recommend it in that regard even if you're not a lager drinker, try it. Because I'm not usually a lager drinker and I love this beer. And then when I looked into it, it's amazing. It only has 100 calories for a 12 ounce beer and a gram of protein. It's basically health food. This beer is truly phenomenal. So I'm putting it out there so that East Coasters out there can find find Montauky Cold Snacks and purchase it and bring it more to the east coast, make it more broadly available. It's just my neighborhood bar. I've been able to find it at around D.C. and I want to find it more places? Frankly, I'd love to buy some and bring it home. I haven't seen it in a store yet. I've just seen in bars.
- [83:15]
C
This episode of Rational Security is brought
- [83:17]
A
to you by Montucky Gold Snacks. I would talk to me Gold Snacks. We may have a policy against alcoholic beverages, but I'll see if I can get an exception. And I will say this on top of it, if you, if you feel you need one more incentive. They give 8% of their proceeds, I think it was 8% to local charities wherever they sell their beer. So they support a bunch of animal and child welfare charities, a bunch of natural preservation charities, a bunch of other groups. It seems like a phenomenal company, so I'll throw it out there for Montauky Cold Snacks, one of my new favorite beers. My new favorite nationally available beer, it turns out. So check it out if you have the opportunity. And with that lowbrow suggestion, let's let me turn it over to you, Anna Bauer, to bring us home. What do you have for your object lesson this week?
- [83:57]
B
Yeah, so I do a lot of legal writing and legal reading, as you guys know, but I love also in my spare time when I have it, doing some writing for myself as well, like creative writing. And one of my favorite forms of the genre is the personal essay. I just love reading personal essays, which is I think the best way to learn how to write them. And I over vacation decided I was going to try to read a bunch of good examples of personal essays. And I found this one that I read for the first time that it was published in 1996. It is by Joanne Beard. It was published originally in the New Yorker and it's called the Fourth State of Matter. And it is a remarkable piece of writing. I just like it's one of those pieces of writing where you read it and you're like, I can't not just tell everyone about this and tell them that they have to go read it. And all I will say about it is that it is about dogs and grief and mass murder. So I'm not going to say anything else. But go read the Fourth State of Matter in the what is this? What is the date June 1996 of the new Yorker magazine.
- [85:35]
A
Wonderful suggestion. I will have to check this out. It seems like a powerful essay. I was half expecting you to bring in your favorite Adam Sandler facts beyond him officiating the wedding of the wedding of the Decade this past week up in New York. But that's all right. We'll save the same man for another day. We've got time to bring him back.
- [85:52]
B
I'm not like much of an Adam Sandler person, so I don't know.
- [85:56]
A
I didn't know anyone.
- [85:57]
B
He really was still, is anyone much of an Adam Sandler person? I don't know.
- [86:03]
D
But I do. I discovered my parents are Adam Sandler people and have actually gone to see him live. I cannot explain this. This came out of the blue for me, but somewhere in my heritage is an Adam Sandler gene and I hope like many genes, this particular one is not passed through my own lineage.
- [86:28]
A
You know, what can you do? Well, know good. Congrats to the Sandman for finding himself back on the national stage for the first time in a long time. And with that, we will wind up this episode of Rational Security. And 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.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 media, social, social media, wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast, among other special benefits. For more information, visit lawfairmedia.org support our audio engineer and producer this week is 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 Patcha. On behalf of my guests Ben, Michael and Anna, I am Scott R. Andersen. We will about talk talk to you next week. Until then, goodbye.