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- [00:01]
Troy Edwards
The Electronic Communications Privacy act turns 40 this year and it's showing its age. On Friday, March 6, Lawfare and Georgetown Law are bringing together leading scholars, practitioners and former government officials for installing updates to ecpa, a half day event on what's broken with the statute and how to fix it. The event is free and open to the public in person and online. Visit lawfaremedia.org ecpaevent that's lawfairmedia.org ecpaevent for details and to register.
- [00:36]
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- [01:06]
Scott R. Anderson
Hi, this is Mat from P1 with Matt and Tommy and this episode is sponsored by ebay. The cars you'll find on ebay are just different. They come with a story that you can't wait to share. Like this 1973 Dodge Charger on ebay that has been tucked away in an Arizona Barn for over 40 years. Only 55,000 miles and somehow in great running order, it even has a rare sunroof. Suddenly, a car that was hidden for decades is being delivered in just a few clicks. With ebay's secure purchase, all the paperwork handled, there are thousands of cars on ebay, from unique finds like the Pontiac Grand Prix SJ to daily drivers. And now with a new way to buy them, ebay, things people love. Kid, I feel like you're about to hype me up on a music video or something. Or should be wearing like a large clock. What's going on with the trucker? I like this. I like this kind of vi is a little throwback.
- [02:02]
Kate Klonick
I will say it's a little throwback. It's a little. Kate hasn't showered yet this afternoon. That's, you know, what can I say?
- [02:08]
Scott R. Anderson
It's early afternoon. In your defense, that's okay.
- [02:10]
Kate Klonick
It is early afternoon.
- [02:11]
Scott R. Anderson
It's permissible. But we have young children.
- [02:12]
Kate Klonick
Yeah, I have young children. I'm like coming down with something. I'm like, kind of. But the hat is a gift that I had printed for a group of TAs in my property class and it says I Was a TA in Clonix property class and all I got was this stupid chattel. There's a double on entendre, like pun there with chattel and hat. And there's like, you know, there's kind of just like a bad joke about like, you know, about property law and terminology. But yeah, so this is what I'm. So that's what I'm wearing today.
- [02:48]
Scott R. Anderson
It has a little bit of a. There was a moment. I don't know if anybody, if you all are sports fans, were like Brian Robinson when he was the running back for the Washington Commanders, had like a giant hat and was trying to get a thing started where they were advertising hats that were like five times the size for a normal head so you could have big advertising on them. And that's what that hat demands. I feel like because you have a. A full run on sentence on the front of the hat, it needs more real estate to really take full advantage of it.
- [03:11]
Kate Klonick
Yeah.
- [03:12]
Molly Roberts
You know, the kids are saying these days that something's cap if like it can't really be believed. It's bs I feel like it's great to have a big hat on hand to be able to put that on anytime someone is capping.
- [03:23]
Scott R. Anderson
This is going to become Ben's new thing. We have to be careful about spreading ideas around this. He jumps on these things very quickly.
- [03:29]
Kate Klonick
Don't I know it. Why would like, we're like, you know, five years into dog shirts and that all started with in lieu of fun. I'm really sorry to everyone.
- [03:37]
Scott R. Anderson
That is an entirely ak clonic problem. I will say. We know where the font of this came from.
- [03:42]
Kate Klonick
It was fine. I thought he was just doing it for the show and then all of a sudden they're just everywhere.
- [03:47]
Troy Edwards
And now Molly may have just expanded our demographic into the Gen Z ers. So this is great practice doing that through the whole episode.
- [04:00]
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 stories. I'm thrilled to have some of my colleagues back on the podcast to talk over a couple of big national security news stories that we are following this week. First off, joining us is Lawfare's senior editor returned, I think back after a little bit of leave. None other than Professor Kate Clonick. Kate, thank you for coming back on the podcast. Great to have you back.
- [04:30]
Kate Klonick
It is so fun to be back.
- [04:31]
Scott R. Anderson
Wonderful. And joining us as well as Lawfare's public service fellow, one of Lawfare's public service fellows, I should say, Troy Edwards. Troy, great to have you back on the podcast. I think appearance number three ish or so now. Happy to have you on.
- [04:43]
Troy Edwards
Thank you so much. Good to be here.
- [04:45]
Scott R. Anderson
Three rounding I don't know why you would ever Round two three but somewhere in that vicinity at least. And joining us is, I think, officially a rat sack regular. Now, Lawfare Senior editor Molly Roberts. How does it feel to be elevated to the regular scene? I think this means it's like SNL when you go to a feature player status. That's what you've accomplished here and I hope you're as proud of that as you should be.
- [05:07]
Molly Roberts
Yeah, I think I've peaked.
- [05:08]
Scott R. Anderson
Yeah, exactly. It really doesn't go anywhere from here. I could say that's why I've been doing this for five years, because it doesn't seem to change once you get that status. But regardless, I'm thrilled to have you guys on. We've got a lot of kind of disparate stories in disparate corners of the national security ecosystem percolating, all of which seemed like it was worth spending some time on. And we thought we would pull together this crew of folks with very different interests and focuses to talk about it. Our three topics for this week. Topic 1 Misanthropic on Monday, Anthropic filed a civil complaint in the Northern District of California and a petition for a hearing at the Court of appeals for the D.C. circuit over the Defense Department's designation of it as a supply chain risk. Litigation capped off weeks of building tensions between Anthropic and Pentagon officials over the firm's two ethical red lines for the Defense Department and its use of its AI model. Claude specifically centering around widespread surveillance of Americans and the use of AI and autonomous weapons. What exactly is the Pentagon's grounds for designating Anthropic a supply chain risk? And how does Anthropic argue that doing so is inconsistent with the law? And what might the implications be for the AI industry as a whole? Topic 2 the Mashadian candidate I was trying to find an Iranian city that starts with capital M. There's really there are a couple. This seems like the most obvious one. None of them are super well known. I don't know if it's the best one, but it works for these purposes. Fears that Iran might respond to the ongoing Israeli US Military campaign through overseas terrorism has come to a head this past week as reports emerge that US Intelligence has detected an encrypted message being transmitted from Iran that some believe may serve as an operational trigger for assets sitting outside of the country. What do we know about Iran's involvement in past clandestine operations, including terrorism? And what does it mean that this is all happening at a moment when the Justice Department and FBI have lost so many of their experienced national security personnel and topic 3 Maricopocalypse Now Maricopa. Maricopa Apocalypse Now. There we go. I practiced that one and I still failed at the first 10. There's just too many consonants in a row. Federal investigators have ramped up several inquiries that see appear to be aimed at long standing and thus far unsubstantiated allegations of fraud in the 2020 election that are particularly popular with President Trump and some of his closest supporters. Last month, FBI agents executed a search warrant on Fulton County's election office and confiscated ballots and voting equipment used in 2020. Last week, the FBI reportedly subpoenaed records from a conservative Arizona legislator over the state Senate's audit of the 2020 election results in Maricopa county, and days later, the Department of Homeland Security's Homeland Security Investigations Office, or hsi, requested records from Arizona state officials regarding their own investig alleged 2020 malfeasance. What should we make of these developments, and at what point should we be concerned about the federal government's engagement in these sorts of matters in advance of the upcoming 2026 midterms and of course, the 2028 general election? Beyond that, for our first topic, Kate, I'm going to turn to you on this very messy dispute that has now emerged between Anthropic and the Department of Defense. It came to a bit of a head last week, but of course it came to a head at the exact same moment that the Trump administration decided to engage in a large scale military campaign against Iran that remains ongoing, which we're going to talk about the so we had to spend last week dealing with that and the week that we kind of held onto this topic. It has ripened a bit. We now have not one, but two legal actions filed by anthropic one administrative, one more conventional federal court action contesting what the Defense Department has done, which is to designate as a supply chain risk this authority that's usually used against foreign companies, often foreign companies with strong nexuses to foreign adversarial, if not hostile foreign governments, now being applied for the first time, to my knowledge, to a US Company. Talk to us about what is exactly the basis for what the Defense Department is claiming for being able to do this and why Anthropic? How Anthropic is challenging, what sort of actions it's pursuing and arguments it's making to try and reverse this action.
- [08:54]
Kate Klonick
Yeah. So I'll just kind of back up just slightly and kind of just again just kind of remind everyone, set the stage of like how we got here because it did kind of get folded into everything with Iran, which I don't think was a total accident, that these things were kind of simultaneously brewing at the same time. The fight between Anthropic and the Pentagon is really a fight over who gets to kind of set the rules for military AI and the DoD DoW has basically said that Anthropic is a supply risk because its Claude model has ethical guardrails and limits on certain kinds of lethal uses or mass surveillance of US citizens in particular. And they wanted the, the company to set those aside. They were dictated. But Anthropic had in its government contract terms that kind of broadly said that they were allowed to set these kind of ethical guardrails such that they were. And so based on that kind of language, Anthropic pulls out, says we're not going to kind of remove these. There's this brinkmanship. I want to kind of just briefly point out something there that I think has been under discussed in the reporting of this, which is that this is, there's not really guardrails. So this is not, there's no like, there's no specific standard of like build the fence this high or we know exactly what will happen if like, if we allow this to, to take place. This is in a lot of ways a, in my, in my belief and kind of with the intelligence that I'm kind of like surveying from people that are in Silicon Valley and abroad is like another part of kind of the smash and grab before the midterms of like just trying to get out there and take as much and go as far the administration to go as, as it can on kind of creating like setting the stage and taking executive power over these types of contracts and over this type of tone and how AI gets set up with the belief that if you kind of do this and you set this out and you, you know, and I think that even a few months ago that they might have had more success with this and Anthropic wouldn't have pushed back as much that if you set this out that there's going to be kind of an ownership and a path dependency that happens over this that will be hard to reverse course on. The code gets written, things get kind of built up into the system. And so that happens. But in all of that, there's kind of this brink binge it back and forth. Anthropic says, no, we're not going to do this. Dow says, okay, we're going to label you a supply chain risk. And of course, Anthropic filed suit on Monday in two different jurisdictions. They filed suit in a civil complaint in the Northern District of California with five different claims in their in their complaint around the contract dispute and First Amendment violations. They also filed for a tro. And then on the same day they filed in the D.C. circuit. And so they filed in the D.C. circuit to challenge a supply chain risk designation. So that's what's happening. And what you are seeing, interestingly, is a lot of advocacy groups and other, other frontier models and other engineers and other technical experts deciding to write amicus briefs, deciding to already get out there and kind of join this fight. And so it will be very interesting to see how this unfolds over the next couple of over the next couple of weeks. Microsoft has already filed an amicus brief on the TRO in the Northern District today. And a number of engineers from OpenAI, Microsoft, a bunch of different places, all filed at Amicus yesterday in support of Anthropic, who's represented, I think mostly by Wilmer Hale in the Northern District civil suit. And then I, you know, we know that like there's, you know, the center for Democracy and Technology fire and a but and you know, aclu, a whole bunch of kind of like kind of predictable players are going to be reaching out to kind of battle it out over whether or not there are First Amendment arguments or whether this is a pure contract dispute or whether this has kind of no, you know, and then there's also like the pure public law part of it with like the and national security part. So anyways, it's just going to be like a host of different really interesting issues.
- [13:01]
Scott R. Anderson
So Molly, I know you listen in on the hearing that took place on this yesterday. Tell us a little about what you heard. I believe there's a Northern District of California hearing, as I recall, talk to a little bit how the court engaged with his arguments, approach these things. And notably here's my understanding, although Kate, Molly, correct me if I'm wrong, you basically have the Northern District of California pursuing a bunch of mostly constitutional claims, maybe some broader APA claims. I have to go back and remind myself where the APA claims fell, but basically challenging the whole implementation and seeking an injunction about stopping the implementation of this particular action, then you have the specific statutorily provided review process, more of an administrative process, but going through the D.C. circuit specifically challenging the basis for the designation of the supply chain status. Is that about right? Molly, in that case, which arguments do we see focused on in the court hearing you heard yesterday?
- [13:51]
Molly Roberts
Yeah, it's about right. So yesterday was just a status conference for the Northern District of California case and the judge there. It was mostly about when should they have the hearing. Anthropic wanted it sooner, the government wanted it later. Anthropic essentially won out on that, partly because the government wouldn't commit to taking no additional retaliatory actions in the meantime, which Anthropic said it was worried about. The reason they filed in two places is because there are two statutes that the government cited in its letter to Anthropic designating it a supply chain risk. And one of those statutes, Congress has routed all cases regarding designations under that statute to the D.C. circuit. So they had to challenge that one there and then the other one. And the what Anthrop is calling the public directives, which are the public statements, including the tweets or posts or Xs or whatever you want to call them, from Donald Trump and Pete Hegseth, challenging those in Northern California as well. So these will be proceeding in parallel. They're going to try to have both of them proceed quickly. The D.C. circuit, one is happening a little later than the other because part of the process for that statute requires them to first ask for relief from a government agency and then be denied. So they ask for relief from Hegseth. Interestingly, it's Anthropic versus Department of War. Anthropic is being very diligent about saying Department of War, not Department of Defense, which is kind of funny. I went to a case last week that was the New York Times versus the Pentagon for press access stuff, and that was Department of Defense, AKA Department of War. And the lawyers there were not saying Department of War. But in any case, that's what's going on. That's why it's in the two courts. And they didn't get to the substantive issues in this status conference. They just talked about when they're going to have the hearing, which will be on the 24th.
- [15:49]
Scott R. Anderson
So, Troy, you've been obviously a practicing lawyer at a very different area of law than some of this stuff. But I'd be curious about if you have thoughts about how we see the attorneys. Many of them are former government attorneys. Many of them are folks lawfare, nose of various stripes involved with this case, how you're envisioning their kind of approach to this. Molly described a little bit of a cautious approach around framing tone, Department of War, obviously non adversarial take on that very weird optical front, but one that certainly the government seems to care about and that rings a certain way. Given that the kind of culture war background, what else would you might you expect to see about how Anthropic is approaching this sort of question? And maybe not just in the strictly litigation context, but also in the kind of broader public messaging, broader framing and other activities context. I'd be curious if you have a sense of that.
- [16:36]
Troy Edwards
That.
- [16:37]
Scott R. Anderson
Yeah.
- [16:37]
Troy Edwards
A related point I've been wondering about is how the parties are going to handle their out of court statements. So in most of these districts, including California and D.C. circuit, they have local rules that govern what the parties can and cannot say outside of a court once a matter begins. A lot of that is to make sure that you're not, you know, if it's a trial, a jury trial coming up later, you know, you don't want to pollute the jury pool. But it's not limited to that. Once it starts, there are local rules that often govern and restrict what they can say on the matter. That's going to prove to be relatively difficult here, I think, for the parties, just based on the historical nature of the relationship. I mean, for a week or two there, at least a week, we saw the CEO of Anthropic, Dario Amodi and the head of Dow or D consistently basically send messages back and forth across the bow, right. There was a public statement or essays written by Anthropic. There were statements by DoD through some of their relevant individuals, relatively sharp in tone from DOD and soft in tone from Anthropic, which is I think a nature of what we're going to see play out in the litigation.
- [17:43]
Scott R. Anderson
So Kate, let me come back to you on kind of the broader sort of industry implications of this because we've seen actually a pretty strong reaction, I think across the different Frontier Labs and of other people engaged with the private sector elements of AI that's I think carefully couching their criticism of this to some extent, but clearly concerned about it, objecting to it, I think avoiding saying anything too hostile to the Department of Defense, Department of War, but nonetheless obviously having clear reservations. Understandable because this obviously is a major federal intervention in the industry and federal intervention in a parallel company that they could see that coming back on them. But what are the broader ramifications for the industry and how it approaches either defense type of work and how this fits into it, other defense technologies. Frankly, the Defense Department often operates on the assumption that, that it's such a central part of the market for the product that it can dictate a lot of terms. But that's not as clearly the case here. It doesn't seem to me in regards to Claude or any of these other models. So talk to us a little about the market and kind of broader industry dynamics around the case.
- [18:46]
Kate Klonick
Yeah, so this is, I think it's kind of interesting. I mean if you've been following AI kind of breakouts and kind of the conversations, if you've been like kind of at conferences or doing anything, I feel like all I've been kind of hearing is this kind of vibe of like they're so powerful, this could be so bad, we have to do something. But there has not been, I just really like, it's been really frustrating for someone that kind of craves rigor because there has just not been any rigor around what the threat is or what could go so bad. And I think that this is actually in some ways an incredibly useful and hopefully good pause button to kind of show us what actually the threat is. And here's in my estimation one of the threats that kind of was revealed by this, these frontier models are burning through compute at like an incredible, incredible rate. I think that there were numbers that were just published that said that anthropic is spending $3,000 on average over like subsidizing by $3,000 every user of Claude right now. So like, like a month, like that's just crazy. Like that's crazy levels of compute. And so they're not, I mean, and no one's going to be paying 3,000 right now anyways people. You're not going to be at a consumer level paying $3,000 for, for, to use Claude. So this is kind of like, well who is this product for? Who's going to be buying this product? Who's going to be using this incredible product? Claude is clearly like the best in, has kind of emerged as the leader and there is questions of like whether the six month reprieve was to the Elon and Grok could try to like get up to speed in some type of way. And that's a terrifying thought because it's such a, it's such an inferior model. But Claude is like really powerful and it does seem like kind of what, what I'm hearing, what I'm kind of talking to people at the companies and Things like that is that, yeah, they, they need government contracts. Like this is like, that is the race. The race is to kind of establish who's going to be the, the government contractor. And getting built in at a really foundational level into those systems will be. Is seen as kind of like once that code is kind of like in the system, you're going to have a hard time untangling it. And so I, I mean, I think that that is kind of what we're seeing now with those kind of constraints in place of what that kind of threat is. We can see very clearly that, okay, you think that you're just going to be able to control this and you're just going to hand over all of your code, all of your capability, all of your compute everything to the government and we'll just have this super weapon of AI to use however we want, or we can build a super weapon of AI to use however we want. And you have a supply chain that's basically like. Or like an anthropic that's like, no, you're not, we're not just going to do that. Like, we're not just going to kind of do whatever it is that you say. We are still a private entity. I mean, I think it's like one of the first kind of real, real moments where we know what actually, like what, what the constraints are and what like the risks actually are. Like what they're, what we're actually going to kind of be risking long term. And it is for the litigation just to kind of put like a little bit of a point on this, the, the litigation coming through and everything else. There's, I mean, I'm sure that rat sack people are familiar with the idea that speech is code from, from like the Bernstein case. And the idea that this is like, like, you know, that asking. There's an argument that like, that you can say that it's happening or not, but that basically in the government compelling anthropic to not code things a certain way or to code things a certain way, that they are compelling speech. And that is a First Amendment violation. I mean, the opposite thing is that like, if the government contracts with you for printing services, you don't just like tell that like you don't like the color of their posters. You don't just not print their posters. That's not a First Amendment violation. It's a contract dispute. And so there's a lot of kind of, I think that there's a lot of kind of really heady problems, both kind of From a NATSAC perspective and a really practical perspective about which model ends up becoming, like, there's just so much path dependency and like, which model ends up becoming the one that gets kind of the main DoD contract. And I think that the secondary argument will be kind of the secondary kind of real, like, question that we're finally getting is, like, how are we really thinking about code? How are we really thinking about the constitutional protections of code? Is it conduct? Is it product? Is it, you know, is it speech? And how does that play out across a million different areas of, like, civil litigation and constitutional protections and the copyright and all types of other things? So, anyway, so that's kind of a big sprawling. But if you can believe it, that's actually a more cabined kind of what. What can AI like, how can AI ruin us than we've had, I would say, the last year and a half.
- [23:35]
Scott R. Anderson
Well, so let me pull you in on this, Troy, just because I want to get another lawyer's perspective, because I look at this array of claims and I come to a slightly different conclusion. That sounds like you're coming down this, Kate, which is like, I look at, okay, you've got these background constitutional claims, due process, First Amendment claims. I have trouble seeing that many courts actually eventually reaching them at any point. So it doesn't seem like we're going to have much clarity here, because the statutory administrative basis for what. What the Defense Department seems to have done in this case really seems pretty weak to me. I mean, this is an authority that obviously has never been used against a US Company. It pretty clearly seems to be intended for use against foreign companies. It's not even applied to things like Deep Seq and other foreign AI models. Right. It's just being applied in this one case that strikes me as like a real uphill battle to justify, even in a zone like national security, where usually the executive branch gets a lot of deference. Am I off on that, Troy? I mean, how would you feel if you were the government's lawyer going in and this is the. You had to defend its conduct off of?
- [24:37]
Troy Edwards
Not great, particularly because mechanically, I'm now wondering, can I not use Claude? And can the other side use Claude in drafting my briefs and litigating? Am I limited to lesser models now? But your question is well taken, which is probably legal in nature. And I think I would not feel great there either, because, one, I think the court. I think you're right. The court is going to want to avoid constitutional questions, which is a constant doctrine of the court.
- [25:05]
Kate Klonick
Right.
- [25:05]
Troy Edwards
You know, we don't want to get into these meaty constitutional issues if we don't need to. Let's turn to the statute and the facts before us and determine those issues. And if those are determinative, then we can resolve it there. I think that's as far as the court's going to need to go here. I think the court can dive into the statute, dive into the facts leading up to this analysis and resolve it now. Another reason I wouldn't feel good being a government lawyer here is you run a significant risk of creating bad case law. Right. And you mentioned the deference that the court offers to a lot of to the executive branch and national security issues. I think there's an important reason for that deference. Lawfare recently put out a good article written by a number of NATSAC former officials that say judicial deference is still important in national security cases, but the deference owed to the executive branch is rooted in history and comes from a pretty good default of expertise in the executive branch. If the executive branch here leans heavily on that deference, I think a court is likely going to create some pretty bad case law by deciding that that deference isn't due here, given the raw analysis and how I think incorrect it is on the government side.
- [26:14]
Scott R. Anderson
Yeah, I mean it's been a kind of extraordinary record. I see this as a post 911 generation national security lawyer where the assumption was the executive branch would get and after 911 did get really substantial deference on all sorts of fact judg, all sorts of policy laden determinations. But we see now courts from the Supreme Court on down push back on determinations regarding, well, its statutory interpretation still bears in to some extent in the Learning Resources IEPA context. We have second guessing in certain immigration contexts like Alien Enemies act cases. You have second guessing in a number of the other cases saying, well, we're not sure executive branch, if we can fully buy into your assessment of these in the domestic deployments cases, like they said expressly. Yeah, you actually do get a lot of deference. And even with the substantial deference we give you, multiple circuit courts said executive branch, you're just not meeting the burden in this context. Right. And while the Supreme Court didn't vindicate that on that theory, like those holdings are still out there, the circuit court weren't told, oh, you should be applying a much more generous standard of review. So it's just like it's difficult terrain to operate on I think if you're the government. So Molly, let me come to you on that, that. Why are they doing this? Because it does seem like they're going to lose. And I really think that was our colleague Alan Rosenstein wrote a piece saying, yeah, this designation isn't going to survive first contact with the law. From my, what limited reading and I've done, and I'm frankly intending to do more in the next few days, seems right to me. It's really hard to see how this survives. So what is the goal here? And insofar as this is just part of a broader effort with broader motivation, what other parts are we might we see emerge in the days and weeks to come in addition to this, you know, initial designation?
- [27:59]
Molly Roberts
Yeah, I mean, I think that it is theater to a certain extent. There's a lot of talk about theater within the AI community too. Right. There's talk about it all being security theater. When the AI companies make these statements saying that they do have prohibitions on like OpenAI, for example, saying that it does have prohibitions on mass surveillance, and then people looking a little closer and saying, saying, actually this is just any lawful use, but I think it's also theater on the side of the administration here. And that really what happened was Anthropic, first of all, saying, specifically, no, we're not just going to go right ahead with everything you want. Pete Hegseth and then Pete Hegseth feeling like that was uppity of Anthropic to have the gall to suggest to him that it would tell him how he should run his department and how he should be using or not be using technology. And I think he just kind of took umbrage at that or Trump took umbrage at that too. I think that's really a huge part of it. And then I think there's kind of the broader culture war sense that Anthropic is the woke AI company, which is certainly how it's been positioning itself. And, and you know, Daria Mode has not been shy about criticizing, for instance, in a recent essay, what ICE was doing in Minnesota, whereas Sam Altman has been fairly deferential to the administration and the, and OpenAI other executives have been donating to Trump. So, I mean, I think that that is some of it. I think that it's a posturing signaling kind of thing. So, yeah, I mean, I think it's difficult to know exactly what they'll do next. I think that again, to the extent that they can make these public statements that show, ah, we're going after anthropic, that's probably what they want mostly to do. Because I think they also don't really, and certainly not anyone further down the food chain who has any knowledge of how anthropic is actually used at DoD would not want them to stop working with anthropic. I mean, would not want them to do anything to cut off more quickly, for instance, their ability to use these models on which I think they do rely pretty heavily, because like Kate said, they're the best. And in fact, that's partly why the national security rationale is so bogus. You saw that they want to keep using this if they can, as long as they can. And they initially said they were going to invoke the Defense Production act because anthropic was so important to national security, not a threat to national security. So I think they put themselves in a tough spot in terms of what they want to signal and in terms of their actual operational needs.
- [30:48]
Scott R. Anderson
Yeah, it is obviously important and fascinating case. We'll have to see where it goes. I have a feeling we're going to have opportunities to revisit it and discuss it more in the future. But let's move on to our second topic for now, and that is the question of a different sort of retribution from a very different corner of the globe. We are, of course, now in week two of an ongoing Israeli US military operation against Iran, a wide ranging one that has really substantially decimated Iran's already fairly weakened security apparatus, taken out its supreme leader, potentially a variety of other security and political leaders around the country, continuing to target various aspects of infrastructure, overseas maritime assets, as we saw a naval vessel get hit by a US submarine off of Sri Lanka last week. And Iran has been responding, not quite in kind, but in a similar kind, with a barrage of rockets and drones across the region, hitting not just military targets but also a variety of civilian targets as well. What I think is fair to describe as a very indiscriminate set of attacks, or if it's discriminate, deliberately targeting civilian infrastructure at various points. But the one thing we haven't yet seen that has always been baked in to the assumption about how Iran's going to respond to these things is overseas terrorism. We've seen Iran engage in this, sponsoring it in the past. We know about the famous attacks on synagogues in Central America and South America 10, 20 years ago that was tied to Iran, the Bondi beach attack just last year in Australia. Australian officials have tied that to Iran in various degrees. So there is this inclination, there is this tool in their toolkit that they have used in the past. We haven't seen it brought out yet. But now we have these reports about this encrypted radio signal being broadcast around, which I should say there's a fair amount of, of flack around exactly what this means. I think our former co host emeritus Shane Harris wrote a great piece on this in the Atlantic, kind of breaking down, debunking at least some of the confidence about what exactly this means. One possibility at least is the idea that, oh, they're signaling to these overseas assets, these kind of Manchurian Candidate sleeper agents around the world. Hey, gloves off. Time to start doing things. Troy, I want to come to you on this first because you have helped prosecution, different elements of the kind of broader global Iranian apparatus. As a prosecutor, I know you're working with some colleagues now looking at some of these patterns, what Iran has done. Talk to us about what Iran's historical pattern of this sort of retribution has been and how this latest set of developments might fix into it. Why aren't we seeing this sort of response? Is it something we're likely to see? What is the broader Iranian pattern of practice in this sort of area?
- [33:31]
Troy Edwards
Area. So the toolkit that Iran has and that it's pulled from historically is pretty diverse. So just zooming in on kind of a five or six year period from the US Strike on Qasem Soleimani, the former general or commander of the IRGC Quds Force, which is the military apparatus in Iran, focused on external operations. That just zooming in on the period following that attack from the United States shows the diversity of this toolkit. Iran has facilitated murder for hire plots and assassination attempts both on the homeland and in European countries when our government officials travel. And we can talk a little bit about some of those specifics. They've engaged in affirmative cyber attacks on United States infrastructure, both civilian and government. And then they engaged reportedly in election interference in the 2024 presidential election. And those are just three of the smaller examples that the AUD IRGC and Iran engages in when it has this long term memory to respond to U.S. aggression or other countries. And that's to say nothing of their operations in other countries. And Matthew Levitt actually has a really nifty tool to use an interactive map across the world to focus in on all of these Iranian external operations efforts. So just that's zooming out. That's just the toolkit kit that they could pull from. The second question, just in terms of why we're not seeing it now, I think it's important to say that Iran has a long memory and we're only a week or two into this. And at the start of these strikes on Iran, the president, President Trump, said that this would likely take up to four weeks. It could probably take longer, but he guessed about four weeks. I think that should factor into why we're not seeing the certain kinds of asymmetric attacks on the home front or otherwise yet. And I think it's because there's potential that Iran is playing a game of attrition here. Allow the US And Israel to run out of munitions or to run low on stockpiles and then try to inflict political pain on both the U.S. and Israel. And one way to do that is to wait and then surgically approach with an asymmetric approach in the United States home front to make the political cost on Trump and his administration increase significantly while they're replenishing stockpiles. And I don't think we should rule that out. Just because we're not seeing it now doesn't mean it won't come, you know, in the near future.
- [35:57]
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And it's all backed by a 100% money back guarantee. Get seafood you can trust. Go to wildalaskan.comcastc a s t for $35 off your first box. So after the Soleimani killing, we know there was an effort like a kind of publicly stated intent to take revenge on behalf of Soleimani, to avenge Soleimani by the Iranian government. That was again stated fairly, publicly, widely reported, and did have real elements, although none of them really came to fruition. So can you tell us a little bit about what we know about what that effort looked like, what it consisted of and where it came from? We know there was of course the immediate Iraqi barrage against a Al Assad air base in Iraq, which did injure somewhat, fairly badly, a number of US Service members, but not direct. I mean mostly as a result of the concussive force. They were undercover. So a fairly significant attack. President Trump decided not to respond to that and therefore that kind of limited the most direct hostility. Then we had what had been ongoing and then increased after that, hostilities with different Iran backed militias in Iraq. But let's take that out of it. What about the broader global picture outside of Iraq in the region? What do we see Iran try and do? Why didn't it succeed? What part might have succeeded? And, and what does that tell us about what they might try and do here?
- [44:30]
Troy Edwards
Yeah, so I think there's a pattern though, in, in, in. Even though we're excluding it, I think it's relevant to say that Iran often works through its proxies in the region with these kind of more immediate military reactions to US Interests in the region. And those proxies give it both this kind of space for deniability, which they almost always do after the attack attacks, but they also then allow them to funnel just through finances and logistics to these other groups and to maintain their stronghold on those proxies. The reason I highlight it to answer your question is it's actually a similar process that plays out in the asymmetric approach that Iran has to reaching into the US Home front. So for example, in some cases post Soleimani, when Iran reaches out to, for example, attempt to assassinate a dissident that had fled Iran and had criticized Iran's regime in the post, post soleimani time period, Iran has reached out to criminal organizations, organized criminal organizations in other countries, including for example, a partnership you may never have guessed, Hell's Angels out of Canada, which there is a Hell's Angels faction in Canada. I did not know that before this case. But Iran has this reach that extends not only to these kind of more prominent terrorist networks in the region, but these criminal organizations in the United States and around it. So for example, in that case they reached out Hell's Angels through encrypted platforms and arranged this murder for hire plot to travel and attempt to murder a dissident in Maryland and that dissident spouse. The same thing in New York when they reached out to an Azerbaijani faction of the Russian mob with some members that lived in New York City and they organized another murder for hire plot of an Iranian dissident in the New York City area and then scale upward in terms of target targets post the Soleimani strike. Iran both publicly stated but then actually acted on attempts to murder or assassinate national security officials in the Trump 1 administration. And so that would include an individual that was charged out of D.C. that attempted to arrange for an assassination on John Bolton, who was then the national security advisor during that time period. And then there was a second payment or an offer from that same target target to pay even more money to have then Secretary of State Mike Pompeo assassinated. And then, you know, add to that when Mike Pompeo traveled to Paris, a book that was published last year described details around an Iranian attempt to assassinate Mike Pompeo in a hotel in Paris. And again, this is four or five years after the Soleimani strike, all evidencing this long term memory that Iran has. And even though there was that immediate aftermath of a strike on a US base and it was successful in injuring a number of US servicemen and women, it shows that Iran has higher hopes and a long term memory to kind of attack these folks that were directly responsible for the strike. I think that we should be concerned about the immediate aftermath and we can talk about the diminished capacity for us to defend against it, but this is a concern that folks should have for the foreseeable future. I mean, years into the future.
- [47:38]
Kate Klonick
Yeah, so I actually, I have a question on that really quickly, if I can cut in. So Troy, like I'm hearing a lot from people that are saying like, what a great time for us to have completely dismantled, like all of the FBI staffing and the decline in DOJ personnel and everything else. Right. As kind of we ramp up all of these efforts that create exactly the types of threats that you just described. So I mean, can you just say a little bit more about that?
- [48:04]
Troy Edwards
Yes. So, you know, and just to kind of amplify the concern, as Iran's infrastructure and the IRGC's infrastructure in Iran is diminished by some of these strikes from the US and Israel, it's possible they start to shift to kind of a loss calculus of risk acceptance as opposed to risk aversion. So before these strikes, and maybe even a little bit before the June 2025 strikes from the United States on some of the nuclear facilities, Iran was in a place of risk aversion. Right. They have a pretty strong foothold. Although it started to weaken post October 7th retaliation from Israel, they had a strong foothold in these proxies. Now as they start to lose that foothold and they lose the capacity even in their home front, they may shift to a risk tolerance model of decision making because of how much loss they've incurred. And so what that means is they may be backed into a corner where they may react a little more aggressively. And that aggression can kind of look like a number of things. One, it may just look like Iran putting out public statements that motivate, motivate lone wolf type attacks. Individuals who are in the United States and sympathetic to the Iranian cause and sympathetic to the damage they're confronting. In fact, it was pretty soon after the strike started on February 28th where an attacker in Austin, Texas shot up and killed I think multiple individuals at a nighttime area of Austin. And I know it's still under investigation, but the public reporting is that he had some kind of Iran and paraphernalia or shirt design on. And so you know, you have to worry about that. Just the messaging coming out of Iran to radicalize out of 330 million people. The risk is non zero and increasing that someone is going to take to that cause. And then there's the more Iran sponsored attacks or networks from their intelligence apparatus that although they're weakened in the United States, they're going to have the ability to reach out and connect to folks in the United States and elsewhere. And Scott, you mentioned this. I think it's fascinating. There is this kind of reporting going on both in the Atlantic but in ABC News about this numbers station. And it's actually chilling. I have the audio. I don't know if it would come through. I can play it. I actually have a recording of the audio that's been broadcast over 10 times over the course of the last week.
- [50:16]
Scott R. Anderson
Oh, interesting.
- [50:16]
Troy Edwards
I might try. It's 20 seconds. If you don't. I mean unless.
- [50:19]
Scott R. Anderson
Yeah, let's try.
- [50:26]
Troy Edwards
Fish have. Fish Have. Have. Jahad do fish. No Shish have.
- [50:40]
Kate Klonick
Has.
- [50:42]
Troy Edwards
So basically it is a 20 second clip where the individual says enfarsi, you know, announcement, announcement and then a string of seemingly random numbers. The reporting is suggesting that. And I thought there was great reporting out of the Atlantic as you mentioned, wondering what is this? Is this Iranian origin? Is this a signal to folks like sleeper cells in the United States to activate them? I think it's good question to ask. There's also some reporting that there is an Iranian origin jammer trying to jam this signal all the way out to Canada. And so that's a pretty strong jammer and effort from Iran to potentially block this signal. But then it's pretty quickly shifting to radio frequency. And so there's still speculation about whether that's Iran doing both and trying to kind of cloak whether or not it's them or them sending out the message or them sending out the blocker. And then there's ABC reporting that seems related to the same number sequence that's going out that says that there's a government alert out to law enforcement agencies that provides a little more detail that says that they believe it's likely of Iranian origin. This sequence of numbers and potentially related to a message out to these folks who will attack in the United States. All to say it's a really important time to have a robust national security apparatus to deflect against these kinds of attacks. And we are unfortunately at this time at a weakened state of a national security apparatus. And if you take these kind of tools, we've talked about the murder for hire plots, the espionage attempts all the way to cyber attacks attacks, the various agencies that are responsible for guarding against them have all been diminished. You've got the FBI's counterintelligence task forces that are focused on Iranian counter espionage, that Kash Patel fired a dozen or so of those agents and analysts about two days before the strikes began. You've got nsd, which has two litigating components, the Counter Export and boy, I used to call them Counter Espionage Section. And that's not actually what they're called, but the CES section. And I was part of cts, so I hated on them, kind of like the Yankees and Red Sox and so. And then there's the Counterterrorism section, both of which have been dwindled. I mean, it's reported that the head of Counterterrorism Section has been deployed since last fall as a member of the National Guard, activated in the District of Columbia as part of that surge and that it is down about 50% of its personnel. And same with CES. It's been reported that CES, the folks that remain have been focused on the Epstein redactions. And so when you combine this FBI distraction and dwindling and the same with the National Security Division at doj, it's really concerning that the folks who may remain have their eye off the ball and the folks who aren't there have removed the kind of institutional memory and relationships that are required to keep our eye on these kinds of sophisticated attacks from Iran.
- [53:35]
Scott R. Anderson
It really is pretty extraordinary. And I will say, I mean this administration, I look at this particularly at the overseas element, which I'm more familiar with from my professional background. You look at the way they've been evacuating embassies and non essential staff where early on, before they launched the strikes, they started moving some non essential personnel out of Udayud Air Base and some of these other local regional bases they knew were likely to be attacked. I didn't see anything specifically about Embassy Baghdad, but I wouldn't be surprised. I mean there aren't really non essential personnel there anyway. Or there are, but there aren't family members usually and Stuff like that to move out. Now we've seen two weeks later, later the administration evacuated huge swaths of embassies all across the region, all the way to Beirut, all sorts of other areas, all in response like what was anticipated to be the Iranian response to an action like this. This is not a surprise. People have been talking about this for a decade or more. Like this is exactly what every one of you asks. How is Iran going to respond? It's going to be to hit all of these targets, particularly in the region. The fact that they were this late to take that step, step I do think is pretty disconcerting. I think it does say maybe they didn't think they were actually going to take the step to launch this scale of an operation. Maybe they thought they're going to do something much more limited early on. So they didn't anticipate the sort of response. Maybe they didn't think it was going to go on this long. Maybe the decision was just reached so quickly that didn't get it to the rest of the bureaucracy or was kept in such a narrow channel. It didn't get to the rest of the parts where people would know would say hey we need to start taking XYZ step. But it does not speak of a lot of the preparation that goes beyond the strictly operational side to these sorts of things which is really disconcerting when you think about something that has global knock on effects including potentially here at the home front where again as you say Troy, we like we've had such a weakened apparatus like it's astounding and if something does happen it should be a massive political liability for absolutely everyone involved. And it's one that people like lots of people are law firm and lots of other people have been warning about for the last year as a consequence of what the administration is doing.
- [55:35]
Troy Edwards
And that's the predictable outcomes from. Right. Those are the, those are the concerns we knew we should have going in into an operation like this. Now think about the concerns we have in the aftermath of this that we can't predict. Right. Knowing which individuals may be traveling awkwardly or concerningly, knowing which way the money is going to go and the folks who are responsible for tracking that and watching that have all either been fired or put in a position to be focused on other issues. And it's a really concerning model that will continue to exist as we see the government continue to beg for people to come back and fill these ranks and try and hire and fail to do do so.
- [56:14]
Scott R. Anderson
So Molly, I want to come to you as we get close in on closing out our conversation on this topic, although again, another one, we're going to have opportunity to come back to talk to us a little about how the administration is framing this and how it fits into the broader political discourse both around the Iran operation generally, but also as we're in this moment where we're approaching very important midterm elections. We know the president, as we're going to talk about in a minute, is doing things related to the elections. We know the president's trying to pass the Safe America act desperately to the point that he's got John Cornyn flipping on the filibuster now in an effort to secure the Republican nomination for the Senate in Texas. That doesn't appear like it's likely to go anywhere, but it's still some of the administration that he's basically laid out as his only legislative agenda. This all fits into an area where you see growing American discontent with the conflict, with the economy, which is being hit by the conflict. All these other factors, how is this going to be politically justified? And how do those different political pressures, do they tell us anything about what the tempo and pace of the operations are likely to be? Are we seeing a sense from the Trump administration of some waffling around this sort of stuff, or are they finding other instrumental uses for these other factors?
- [57:20]
Molly Roberts
How is it going to be politically justified? I mean, I don't think they're going to succeed in justifying it politically. I just don't think it makes any sense for their base the way that they would justify it politically. I mean, it's not going over well so far. It just doesn't seem like a very MAGA line to say, oh, well, the poor protesters, we love democracy. I mean, that just just doesn't fly. The one area that I've been interested in, and this does tie into the elections, and I don't think this was totally on message for the administration, but Trump was tweeting, and no one else was saying this, but he was tweeting Iran was interfering in our elections. So now we're going after Iran. And that was sort of concerning to me from the the point of view of election conspiracy theories generally, which have had a lot to do with foreign interference and the particular legal rationales that some of the kind of fringe actors in or close to the administration have been floating around taking federal control of elections which have to do with this is a national security emergency. We have foreign interference. And I think that those are pretty bad arguments. But I also think that they're slightly easier arguments. And certainly if you were trying to do this in a more legit way, where you were citing specific statutes, they're slightly better arguments if you're able to point to a foreign adversary with whom you're in an armed conflict. And I saw an essay, I suppose, by Timothy Snyder maybe today that I think is a little, little melodramatic where he was saying, oh, maybe, and this goes to the sleep yourselves thing, where he was saying, maybe it's to Trump's benefit to invite terror here, because if you have terror here, then you can really declare a national emergency and you can deploy troops and do all those sorts of things that could interfere with elections. And again, I think that is perhaps a bit overblown. And I'm not suggesting that the president is trying to get Iranian sleeper cells to activate and attack America, American citizens. I'm not suggesting that at all. But I do think that there being some form of conflict is useful when it comes to alleging a national security emergency. I know that Kate has thoughts also, though, on the politics of this.
- [59:39]
Kate Klonick
Yeah, no, I just completely agree with you, Molly. And I just kind of wanted to, like, kind of cut in. I have not, I'm not as skilled in kind of like the operations part of any of this or kind of understanding that side of it. I'm, you know, just a civilian in that sense. But I do kind of, I am watching the domestic kind of deployment, and I'm thinking as he's saying all of this kind of stuff about election interference, that this is a message to his base. Like, that is 100% what kind of the MAGA base want to hear. They have rallied around election interference and everything else since 2020. And that, you know, I think that, like, just today, like, Joe Rogan said that the war in Iran is like a betrayal of like, all of kind of the MAGA base. And so I, I just, I want to kind of foot stomp what you're saying and just kind of say, yeah, like, they think that this is a way to kind of just, it's just a manipulation of the message to justify the, like, the maneuvers to the domestic audience that he is trying to please and kind of stem some of the damage that this war kind of looks like he's kicking off.
- [60:41]
Troy Edwards
And I mean, I just say that I think it was the president that said just this week, which is, I mean, you don't want to become numb to this. When asked whether or not Americans should be concerned about a terrorist attack that would kill Americans after these strikes his answer was, I guess, I mean, that's a phenomenal statement in the literal sense. Like, I can't, I, I can't believe that he, that, that that's our approach to the aftermath of these attacks, knowing that the national security apparatus has dwindled.
- [61:11]
Scott R. Anderson
Yeah, well put. Well, let us take a moment to pivot now to our third topic, and that is what Molly has already alluded to, which is this question of election investigations and allegations of election interference. Not looking forwards. We're looking backwards, specifically in regards to that bete noire for President Trump and certain people around him, the 2020 election that he lost to President Joe Biden. Molly, talk to us a little about what we've seen over the last few weeks in terms of the Trump administration's maybe not pivot towards this issue, which has always been hanging out there as something they care about, but maybe move towards taking more concrete steps towards investigating this and how it fits into some of these broader narratives around elections fraud that we're seeing. Looking ahead to 2026 and 2028.
- [61:58]
Molly Roberts
Yeah, for sure. I think it's interesting that you say not looking forwards but looking backwards, because separating those two things is quite difficult in this context. I think you're right that what we've seen in recent weeks has been literally looking backwards. The raid of the elections warehouse in Fulton county, where they left with a bunch of ballots and information about that. Them, this subpoena to the Maricopa county official who is sympathetic to them and I think would have given them all that information anyway. Those are focusing on, again, conspiracy theories about the 2020 election that Trump lost. And Maricopa county and Fulton county both were. I don't know if you can have two epicenters, but they were centers of those conspiracy theories of that kind of fight. And there was a widely discredited audit that Republicans did of what happened in Maricopa county that, you know, when you really look at the facts, shows that there wasn't any malfeasance. But this appears to be the president trying to relitigate all of that. So you could say, all right, he's upset that people are saying he lost an election that he thinks he won, or that he's saying that he won and he wants to and try to punish people, retaliate against political enemies, and also just prove to his base that he was right. But I think it's more than that because this is, to me, forward looking as well. There are lots of actions the administration is taking related to the midterms, including Trying to get voter rolls from a lot of states, which blue states have sued, red states have complied, and they then also mulling. And I'm saying that loosely, but the President tweeted about trying to achieve what the Save America act that seems stalled out in Congress would achieve by executive order. And so the Save America act is voter id, voter registration. It's not, although the President has been saying a lot about this, making it sound like it is. It is not banning mail in ballots, but he really wants to ban mail in ballots and then also stricter standards for voting machines is one thing that he's obsessed with. And he's saying, I can do that by executive order. I have an irrefutable legal theory, and it seems like it's possible that this irrefutable legal theory could involve saying that there's a national security justification. And this ties into Fulton, we know more clearly, but may tie into Maricopa as well, which is that when they say the election was stolen, in a lot of cases, these conspiracy theorists are alleging foreign interference. And Renee Diresta has a really great piece up on Lawfare there just recently about kind of the top five of these conspiracy theories about foreign interference. But the idea is you allege there's foreign interference, and you use that as a pretext to take executive presidential control over the elections, which is not constitutional, but that's kind of what they're thinking about doing. So when I look at those rates, I view them in this broader context of an attempt to wrest control over the elections and achieve these Republican objectives that it doesn't seem like Congress is going to achieve, even though. Though the only constitutional avenue for it is for Congress to do it.
- [65:20]
Scott R. Anderson
Yeah, it's interesting. Here's the part of this that I wrap my head around, or have trouble wrapping my head around, although it may just be that I am just inherently more skeptical of. The utility of some of these things that have a messaging component is that the President can declare all these actions. There's lots of people, at least certainly his camp, that already believe all these things are true. He could take all these actions without doing doing these additional investigations. I don't think there's much reasonable basis for believing the additional investigation is actually going to yield evidence that supports his case for doing so. It could actually do the opposite. And if what he's worried about is ultimately a legal challenge to say that these efforts are unfounded or baseless, I'm not sure why these investigations actually put him in a stronger position to do that. They might Help in the external optics to say these are actively under investigation. That gives it a hint of legitimacy. And this administration really buys into that. Right. Like that. We've seen him do that with. With a lot of these political retribution things like, well, you're under investigation for this. We're starting investigation into this. And that alone gives credence, in their view, to saying, well, there's a basis for us to take action around this. But I have trouble buying into the idea that pursuing these sorts of investigations actually helps build the case for these further steps. And it seems like it might actually weaken it, because if they're going to tie and tie their cases into evidence from these investigations and it becomes a legal challenge, people are going to seek discovery for it. People, courts are going to want to look at it, and it's going to be harder to hide the lack of basis than if you just don't have that data to begin with. Troy, I'd be kind of curious about your thoughts about this. I'm approaching this as what I think of as from a litigation perspective, from somebody who does not actually litigate things. So I might be totally off, but what does that resonate to you? How do you see this investigations fitting into potentially an eventual effort to say we're going to take legally controversial executive action around 2026? Do these help hurt? How do this fit into that picture?
- [67:17]
Troy Edwards
I think it's going to hurt it. And like you said. But my take on it is that when the Trump administration, particularly when DOJ acts on an interest for the president, they enter the halls of the criminal justice system into a court, courthouse. They then surround themselves by a bunch of rigid walls that close them in that are tied to truth. Right. So the criminal rules of procedure, the local rules, the court system, the ABA ethical rules, you erect all of these roadblocks to them being able to actually do anything with this information. We've seen that play out after Fulton county, when various parties now file 41G motions and the federal government gets bogged down in trying to justify that they can keep these records before they can do anything with it, that courts can pause them from being able to do anything with materials. We've seen this in an unrelated case with the search warrant for the reporter from Washington Post, where the government had to freeze and not be able to look at things. So all to say, when you enter this criminal justice system, it's a testament to our institution, the administration now is locked into a set of rules, policies and procedures, all of which surround the touchstone of truth. And that starts to plot, play out disfavorably when you wonder if this can lead to the federal government being able to take advantage of the information they're collecting in a way that's not envisioned in the criminal justice system. You know, another example of this would be, I suspect there will be a number of limits to what the FBI can do with information that they collect by subpoena or by search warrant. And if the government then turns around and uses the information pretty explicitly to erect a number of executive orders, orders, I think there will be avenues for parties to challenge that as simple violations of the material that they've collected through criminal process. So I see this as they're presenting a number of hurdles between here and midterm elections being interfered with.
- [69:11]
Molly Roberts
Yeah, I mean, that's great. To the extent that, you know, they continue to obey and listen to what the courts say. I think the scariest idea is, is this to some extent, a test run? We're going to see what happens when we look at a past election and we go in and we take a bunch of ballots and we're going to see what happens in court, and we're going to see what hurdles we have to surmount. And maybe we don't care that much about what we come out with here. Maybe, best case, we get a bunch of kind of half information, bits of information that we can then contort and that Tulsi Gabbard can put in her threat assessment and misrepresent in her threat assessment. But then if we use that threat assessment assessment in the future with an active election to try to take a similar action, we know what the process looks like in court. We know where people are going to get in our way. And then we can decide whether we're going to listen or not. We can decide or we're going to respond. Because we've had this test balloon here and we've kind of run the game already. I mean, I don't want to be apocalyptic about it, but that does feel like the. What you're talking about feels like kind of the best case version of it. And I think that's the worst case version version of it.
- [70:17]
Troy Edwards
Yeah, that's a fair point. I'm heartened by the fact that even the Trump administration will get a court order from the Supreme Court, for example, on the tariffs. And the most they've done so far is throw their arms up and yell that this is a desecrated institution, but then follow the order once we see a deviation from that practice. I'm with you, Molly. I mean, we're in trouble.
- [70:40]
Scott R. Anderson
Oh, I will say, I mean, here is the thing with our institutional system that I think is proven to be a real bulwark of stability in turbulent times is that the whole legitimacy of the whole rest of the system actually following the direction of the person in charge, is that they believe they were lawfully elected. There's a reason for leave. The president was not lawfully elected and he nonetheless stays in the White House and appoints a new Attorney General. Every criminal convicted in the federal government is going to challenge the appointment appointment of that Attorney General, which we already saw with Mr. Whitaker during the first Trump administration. Right. That causes real problems. We're seeing it now with the different U.S. attorneys. Right. Like, okay, the federal government, you have a federal government he's in charge of, but they can't actually successfully currently prosecute anyone. Okay. And then when you get to individual soldiers or individual civil servants where they're asked to do something unlawful and then they face a court order to the contrary, and that court order, by the way, says by the way, like none of this is lawful. You have to have such a systemic control to dictate the influence all the way down consistently enough to actually simulate and assume control of the system that it just strikes me that I think maybe Donald Trump or certain people think they have that capacity, but it's based off a very grandiose idea of their own popularity and significance and cultural weight and heft that I just don't think carries out. I think it's more of a symptom of being in a, in an echo chamber ideologically than actual political or social or cultural reality. So, I mean, doesn't mean they don't try. I'm just not sure it's, I'm not as worried about that actually succeeding. I am worried about the attempt, maybe in certain regards, but the effectiveness of it is such a downstream consequence. And I think frankly you look at a lot of everyday Republicans who may go along with what Trump says because he's popular and gets elected, but in the end would have issues with this and see political fortunes that extend beyond their 80 year old President and say, maybe I don't want to ride along with this. I don't know. I am cynical about so many things, but the absolute collapse of Democratic government is one where I have trouble getting all the way there. How it gets there, as rocky as road as it might be, but maybe I'm too rose colored glasses, a small deep Democrat in that regard. Sorry to end it on my Little rant there. That's my inner institutionalist coming out.
- [73:03]
Molly Roberts
I'm good. I already had my.
- [73:04]
Scott R. Anderson
That's a great way to end, I think, between your skepticism of institutions in my inherent.
- [73:09]
Molly Roberts
Well, I, I, I'm, I'm just torn. I mean, I just like, I, I don't know. Right. The problem is that none of us do.
- [73:15]
Scott R. Anderson
That's like the issue.
- [73:15]
Molly Roberts
Yeah, yeah, you could be right. And that's how it goes. And, you know, you could. They've been so weird about saying that they'll always listen to the Supreme Court. It's so weird to me that they have and that they, you know, haven't that. I mean, with the tariffs, it was interesting to me that the worst thing he said was that they betrayed their country. But, but it's just unclear to me at what point that breaks down. Is it, oh, I'm deferential until it's about the election. I don't know.
- [73:45]
Kate Klonick
I just also just kind of want to say there's a, you know, that Thomas Edsell had like a piece, I just saw the headline of it and kind of briefly skimmed it in the New York Times. It was about the smash and grab presidency reaching its apex. And I have to say, I don't think we're in the apex that I agree with.
- [74:00]
Scott R. Anderson
We're nowhere near the apex.
- [74:02]
Kate Klonick
I think we're on our way to the very, like the finalists. But I do not think that we're at the apex. And one of the reasons is because I think we're going to see increasing levels of desperation before the midterms. I really do think that they see the writing on the wall, that they have a limited amount of time. The courts are starting to come through. I think that we're seeing. And when I say the courts are starting to come through, I think we're starting to see things that we always knew they lose, they said that they were illegal, we've taken them to court, we're getting district court opinions or whatever, kind of. And they don't want to appeal them. And we're seeing that from like the firms and other types of things. They don't want to create precedent that's leg longer than this presidency, frankly, in some type of way that hurts their chances at ever doing this again. And so this is, I think, something to kind of keep in mind to your point, is that I think it's going to get a little worse, unfortunately, before it gets better. I think that this kicking off with Iran is like, actually kind of like, I don't know, like the final day up to the top, like to the summit. And I think we're going to kind of be in it for the next couple of years, couple of months.
- [75:05]
Troy Edwards
I've had a similar thought where part of the concern I see that I have is folks are going to start realizing how existential it may be as they approach the midterm elections. Folks who are in the administration and cabinet are going to see it. And I am curious if we're going to start to see some of the more fringe voices start to cry out that if we lose this election, you'll be prosecuted by a future administration and you'll be put in jail by a future administration. Not to say that as some kind of analysis, but to say that to fear monger and make sure that they rally a group of folks who may act to infringe upon this election because they see it as a bit of an existential step. And so the question then becomes, if that's true and we start to see that play out, how should the other side of this political apparatus respond? Should they. Are we going to start seeing Democrats talk about, yes, we should prosecute these folks, or are we going to see Democrats start saying, boy, we need to provide off ramps for these, these folks to be able to step down and say, okay, yeah, this is too far for me. I've disbanded from the current administration and here's what I've learned or know or here's what I support, so that way they can start to shift toward a more free and fair election. I don't know. I'm curious to see how both sides start to react to one another as we get closer to the election, which feels like a vector.
- [76:23]
Scott R. Anderson
Yeah, yeah. All fair points. Well, lots for us to dig into here in future episodes, but for the moment, we are out of time this week. 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. Kate, what did you bring for us this week?
- [76:38]
Kate Klonick
I brought my Balkanization mug.
- [76:42]
Scott R. Anderson
Classic.
- [76:43]
Kate Klonick
I know, it's so great. Jack Balkan's original legal analysis blog, populated for a long time largely by a lawfare favorite, Marty Lederman. Kind of ransom.
- [76:57]
Scott R. Anderson
Among others. Among others.
- [76:58]
Kate Klonick
Among others. But yes. And so this is from their. I think it was their 25th. Fifth anniversary. I can't remember, but. Which is crazy to think that it's been that long, but. Yeah.
- [77:08]
Scott R. Anderson
Wow. Indeed. Indeed. Well, there you go. Congratulations. Balkanization. I think that was actually a while ago. This is 25th anniversary, right? Yeah. Troy, what did you bring for us this week?
- [77:16]
Troy Edwards
Okay, I swear I didn't coordinate with Kate ahead of time, but mine is also a mug because last time I was on Rat Sec, I talked a little bit about the firings of a bunch of friends and colleagues and our national security apparatus. I brought my ex Fed hat. Sadly, between that episode and my second appearance, there has been another slate of firings of folks who I'm close with in the FBI. And so I brought my ex Fed mug for those folks.
- [77:41]
Scott R. Anderson
There you go. Color scheme seems somewhat less cheery with the mug now that's getting checked away
- [77:47]
Troy Edwards
of my emotional state as it happens.
- [77:49]
Scott R. Anderson
Yeah, indeed. Indeed. Well, absolutely. Still a phenomenal logo. And our sympathies go out to a lot of those folks as well. Obviously wrestling with a difficult, difficult moment. For my object lesson, I will say I was stuck in Union Station a few weeks ago, where Union Station now has acquired a very hip and useful and cool little store that sells used records and used books, which, if you're stuck in Union Station for like, three hours, it doesn't really happen to me because I live in D.C. but it was just like a weird coincidence that I had to wait, kept waiting for a train that never left while I was there and peruse and picked up some great albums, some great books, one of which I'm really enjoying and reading. And it had some weird poignance for this particular moment. I think this is Barbara Tuchman's A Distant Mirror. I'm forgetting the subtitle. Hold on, let me pull it up so I can remind myself. It's something about the 14th century. A distant Mirror. Where did it go? The calamitous 14th century. That's right. Which is this incredible portrait of, like, one French kind of estate over the course of about a century, a little over a century, mostly straddling the 14th century. But it's this incredibly deep, deep dive into medieval culture, the relationship between church and state and all these other things. And it is. Is fascinating, really interesting and completely brutal to read. It makes you appreciate just how improved we are in our modern day for all of our problems off of the issues they faced back then and then. There are all sorts of weird parallels where you read it and you're like, you could read this exact sentence about stuff happening today. It's so strange. Just like, how much people are still the same even centuries earlier in such disastrous contexts. But it's a great read and it gave us something that is evidently called Tuckman's Law. I didn't know this. I looked up the Wikipedia entry on this, but I highlighted this quote. I think it's such a good quote from the book, which I'll read read which I don't know how to take exactly how this bears on anything relevant, but I do think it's just well done and interesting where she writes. After absorbing the news of today, one expects to face a world consisting entirely of strikes, crimes, power failures, broken water mains, stalled trains, school shutdowns, muggers, drug addicts, neato Nazis and rapists. The fact is that one can come home and in the evening on a lucky day without having encountered more than one or two of these phenomena. This has led me to formulate Tuchman's Law as the fact of being reported multiplies the apparent extent of any deplorable development by 5 to 10, tenfold or any figure the reader would care to supply. I don't know how to take that in this particular moment, but it strikes me it's both very useful and very true, at least historically. I don't know if that's true of news reports, but certainly historically it's useful. But yeah, it's interesting. She takes great joy in describing and researching really horrible things. That is kind of a useful skill at this moment. And with that, I'll turn you to you, Molly, who brings a similar joy while covering terrible and merciless things here for us at Lawfare. What did you bring for your object list lesson this week?
- [80:25]
Molly Roberts
Yeah, I'm out of town, so I was kind of scrounging. I do not have a favorite mug, unfortunately. I am, however, in California. And I was thinking that I could vaguely relate it to what we talked about in that the anthropic case is taking us to California. And so I have brought a very California item, although I think it's Southern California that I just discovered the existence of, because where we're staying there is. Is an avocado and chermoya orchard. So this is a chermoya, which is a custard apple. So new fruit for everyone to try. Although I don't know how easily you can get them at home. I could. I'll try to pull it open.
- [81:04]
Kate Klonick
All right.
- [81:05]
Molly Roberts
You can see it's like all custardy. Oh, interesting.
- [81:09]
Scott R. Anderson
Is it good? It's sweet.
- [81:10]
Molly Roberts
Let's find out.
- [81:13]
Kate Klonick
Scott is like, this is.
- [81:14]
Scott R. Anderson
This is the mukbang rational security video we've been promising for years. It's finally coming together.
- [81:20]
Molly Roberts
I will say it's good.
- [81:21]
Kate Klonick
It.
- [81:21]
Molly Roberts
It's definitely tropical tasting. It tastes like an amalgam of many tropical fruits. If you have texture issues, like issues with weird textures perhaps would not recommend
- [81:32]
Scott R. Anderson
but I'm custard apple might not be for you.
- [81:35]
Molly Roberts
I'm a friend to all textures so I I like this custard apple.
- [81:39]
Scott R. Anderson
Interesting. All right, this. This we have to go this we have to go check out. I love it. Wonderful. Well, with that, that brings us to the end of this week's episode. Rational Security is of course a production of Lawfare. Be sure to Visit us@lawfaremedia.org for our show page, for links to past EP written work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series. While you're at it, be sure to follow Lawfare on social media wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening. And 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 lawfourmedia.org support our audio engineer and producer this week was me of me and our music, as always, was performed by Sophia Yan. We are once again edited by the wonderful Jen Patcha. On behalf of my guests Kate, Troy and Molly, I am Scott R. Andersen. We'll talk to you next week. Until then, goodbye.
- [82:39]
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