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- [00:00]
Scott R. Anders
We will answer your call as soon as we can.
- [00:03]
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- [02:51]
Scott R. Anders
Troy, we're excited to have you on, but I realized I seen you listed both as LT and Troy. What do you prefer between the two? Which would we be calling you?
- [03:00]
Troy Edwards
Both are fine. LT to family and friends. So I guess Lawfare is now family.
- [03:05]
Scott R. Anders
We're getting there. We have to earn that status and that's okay. We're doing our goddamn best.
- [03:11]
Troy Edwards
But I was Troy in court and to law enforcement friends, mostly because I would have this constant exchange where I would introduce myself as LT and they would then name their rank, thinking I was Lieutenant and so I would have to admit to stolen Valor 1 and then 2. Follow up with it actually stands for Little Troy, which was much weaker and didn't really work with building relationships with my law enforcement community.
- [03:36]
Scott R. Anders
Fair enough. I, as a child who grew up during the Gulf War, had this embarrassing realization very late in life that Colonel Powell was not in fact a colonel. And that's not how you pronounce colonel. I was like, wait a second, he's like a general. It wasn't anything until like high school that I put together, like general. It's weird that he's a general. Colonel. Is that like being a brigadier general? I don't fully understand. So you know, you're not alone in this. Some very, very prominent, notable, admirable Americans have been in a similar position before you.
- [04:06]
Midi Health Advertiser
Foreign.
- [04:11]
Scott R. Anders
And welcome back to Rational Security, this 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 this week. I'm gonna go ahead and call it now. We are gonna call this one the Story of three Warrants Edition because we have a series of stories all centering on different types of warrants in different contexts. And help talk through it, we've got a phenomenal selection from the Lawfare team of legal experts and reporters and people with perspectives on warrants from all angles. Joining me first for a back to back double duty of a type that I usually only impose on one. Benjamin Wittis is none other than Lawfare Senior editor Molly Roberts. Molly, thank you for coming back on the podcast after having just been on last week. Greatly appreciate it.
- [04:56]
Molly Roberts
Oh, I'm so honored.
- [04:58]
Scott R. Anders
There you go. This is, like I mentioned, earned you a brief reprieve. So now people can true Molly Roberts fans can just tune out for the next couple of weeks. Check in sometime in March when we'll have you on as you've earned a reprieve now for a couple weeks off the show. Also joining us is Lawfare Senior Editor Mike Fiemer back on the podcast. Mike, thank you for joining us on the podcast as well.
- [05:17]
Mike Fiemer
Always happy to join.
- [05:19]
Scott R. Anders
Wonderful, wonderful. Thrilled to have you on. And join us for the first time on the podcast is Troy Edwards, Lawfare's newest addition as our new latest public service fellow. Troy, thank you for coming on the podcast.
- [05:30]
Troy Edwards
Thank you so much. It means a lot.
- [05:32]
Scott R. Anders
We have a lot to talk about this week, so let's go ahead and get into substance. We've got a couple of naughty legal stories that have popped up this past week, but we've got a lot of pretty unique perspectives and expertise to bring to bear on them. So let us get in our first topic this week. Tulsi went down to Georgia. She was looking for a vote to steal. This past week, the FBI executed a warrant to search Fulton County's election Center for ballots and equipment related to the 2020 election with the help of an unlikely senior administration official, Director of National Intelligence Tulsi Gabbard, who's reportedly there in at the order of President Trump. In fact, she confirmed as much Observers are concerned that the search is the beginning of a broader effort to relitigate the 2020 election potentially have impacts on the upcoming midterm elections, especially as President Trump has recently called for Republicans in Congress to, quote, unquote, nationalize elections in at least 15 places in it before November. What do we know about the legal basis for the search and what does it tell us about the Trump administration may have planned for later this year? Topic 2 I hear the jury's still out on the Fourth Amendment. Over the past week, whistleblowers have revealed that ICE has issued a series of internal memos to agents advising that they do not need judicial warrants to detain or search the homes of people suspected of being undocumented immigrants and subject to final removal orders, if I recall correctly. Instead, ICE has attempted to sidestep the regular judicial process by indicating that agents only need an administrative warrant, a type of internal document to execute those sorts of searches and those sorts of actions. It's a controversial move that will almost certainly be challenged in court. What do we think of ICE's decision to shift towards this policy? Where do we expect it to go from here. Topic 3 Ex post justification. Last month, the FBI conducted a search on the home of Washington Post reporter Hannah Nathanson as part of an investigation into alleged leaks by Defense Department contractor. During the search, agents seized Nathanson's personal and professional devices, drawing concern from media outlets and civil liberty groups over the potential First Amendment and privacy violations. A magistrate judge has now ordered that the FBI not access Nathan sends materials, at least for now. While some of these issues are litigated, how should federal law enforcement balance the need to conduct leak investigations with press freedoms? And is this case on the right side of the line? So our first topic is this pretty remarkable search that took place in Georgia last week, I think last Thursday, if I recall correctly. It is a odd set of characters, say the least. It's a pretty substantial development. Molly, you, along with Troy and a couple of other colleagues, wrote a phenomenal piece on this. Bring us up to speed. What do we know about what actually happened, what was took place in Georgia and where the story has evolved since the search took place, since you wrote that piece, what the current status is of these materials and how Georgia state officials are reacting?
- [08:08]
Molly Roberts
Yeah, so as most people probably know, Trump has been obsessed with Georgia ever since the 2020 election. That's where he tried to get Brad Raffensperger to, quote, unquote, find 11,779 votes. And he was obsessed with Fulton county in Rudy Giuliani ended up falsely accusing election workers of rigging the vote there. And essentially this obsession has continued up until looks like now in Davos over the weekend. Prior to this search, Trump said something along the lines of the 2020 election was so corrupt, so rigged and people are going to be prosecuted for that pretty soon. Then, lo and behold, the FBI appears in Fulton county at an election center there and says seizes a bunch of ballot boxes and other elections materials, executing a search warrant. And Director of National Intelligence Tulsi Gabbard is on the scene, which is highly, highly unusual. So in our piece, we kind of walk through what could this possibly be about? What are the criminal statutes that are in the search warrant and why is Tulsi Gabbard there? Since then we found out a little bit more about why Tulsi Gabbard is there. We found out first of all that she has been looking into the corrupt nature of the 2020 election, but also she said she was there at the president's orders. And we found out that the president was on a phone call with Tulsi Gabbard and some of the FBI agents who were involved in the search the day after the search. So another example of something highly unusual. Those are two big developments. And the other development is that the local officials are suing to try to get some of these materials at least back. So I think that basically gets us up to speed on where we are now.
- [10:00]
Scott R. Anders
So there's a lot of pieces of this story to break down. I want to get to Tulsi's role. Before we do, though, let's start with the more legal technicalities. Troy, folks who haven't met you yet as our newest member of the law firm, they may not know you are an experienced former federal prosecutor, among other roles that you've played in the past. So talk to us about what we know. I guess first of the legal arguments behind this action, what the alleged crime is, and to the extent we don't know where we might make an educated guess about what they appear to be doing. That seems like the first order question here is is this about a criminal prosecution, as President Trump has promised, or is this still more nascent? Do we have a sense about where this investigation is going?
- [10:41]
Troy Edwards
Yeah. So I'll start with the statutes. I mean, what's interesting about the statutes is both what they allege when the search warrant mentions them in attachment B, and we can kind of get into that how attachment A and B, but also how the statute of limitations works and whether that's even relevant in a search warrant. And so, you know, the first statute, 52 USC 20701, which is just this, it effectively operates as a retention statute and can operate as a misdemeanor given the stat max and the retention. One of the questions is, okay, so how does any of this operate within the statute of limitations if the 2020 election was over five years ago? The underlying premise there being that typically there's a five year statute of limitations on these. This 20701 retention statute requires officials to retain the documents for 22 months after the election. And so take it from November of 2020 and you jump ahead 22 months and then you add five years from that. So September 2022, five years from there. So that actually makes a little bit of sense to me why this would be within a statute of limitations period. What doesn't make a ton of sense to me is the next statute, the 52 USC 20511, which prohibits particular individuals that are defined in that statute from engaging in particular activity of defrauding an election or defrauding others from a free and fair election through a number of actions that are listed in the statute that doesn't have that odd 22 month surplus from the date of the crime or the date of the election. And so I don't know the answer to why that would be within the statute of limitations. Now, there's an interesting question to me which I don't know the answer to. Is this relevant in a probable cause analysis from a magistrate judge? I mean, the operative question that a judge is looking at is, is there probable cause to determine whether or not there's evidence that a crime has occurred in the location that the government is seeking to search? And so maybe there's case law on this I'm not familiar with. But you can see an argument being it doesn't matter whether there's a statute of limitations problem or not. The magistrate's answering that particular kind of question. And then later down the road, the government can have to confront a statute of limitations problem.
- [13:06]
Scott R. Anders
How would this interact with a conspiracy charge or something? Because in theory, you could say maybe these actions were a step as part of a larger ongoing conspiracy that maybe extends through the midterm elections or to 20. I mean, we've seen conspiracy be used to charge a variety of actions where sometimes it's hard to pin down the actions where they raise questions in a variety of contexts. Is that something that could be employed here? I know they didn't cite the federal conspiracy statute necessarily. Does that mean they're definitely not at least alleging a conspiracy at this point?
- [13:42]
Troy Edwards
No. I mean, I think there's two things going on there. One is how, if at all, would a conspiracy investigation impact the statute of limitations? Two is, is whether or not they need to even put that statute in the search warrant. On the latter question, I mean, look, the norm is you would put the statutes that you're investigating, particularly if you've developed enough for probable cause to put those statutes in. You don't typically pick and choose which statutes and hold some to the side. But I don't think there's a requirement, certainly there's no requirement that the government can now no longer investigate conspiracy to commit one of these crimes, which in looking at the statutes, it doesn't appear to be any kind of conspiracy language in them. But that doesn't stop the government from then saying, okay, well, under 18 USC 371, predicated on one of these two statutes, somebody could allegedly conspire to commit them. And so, sure, the government could investigate that even if it's not in the search warrant. And then on that question of how does that interplay with the statute of limitations? It's an interesting question. I think the answer is that's one way that this could survive. Right. Is if the allegation. I think Molly put quite a helpful analysis on this in the and the other concept of this big conspiracy out of Florida, if you allege some conspiracy and the offenses continue throughout the conspiracy, even beyond the traditional statute of limitations, and in some circuits that can include covering up the conspiracy, which would be interpreted as in furtherance of that conspiracy, then that could potentially extend that statute of limitations or not trigger the start of it until later in time.
- [15:17]
Molly Roberts
Yeah, I was going to bring up that big conspiracy, grand conspiracy, as it's come to be called in this case.
- [15:23]
Troy Edwards
I forget the term that we're using before the adjectives.
- [15:26]
Molly Roberts
Big. Big isn't a strong enough word.
- [15:29]
Troy Edwards
Big, beautiful conspiracy.
- [15:31]
Molly Roberts
Yes, the BBC. But in any case, yes, I was going to bring it up and it's a little out there, but this is kind of an administration where some out there stuff has been happening and it could be some explanation for why Tulsi Gabbard was there. But you don't really need this to explain why Tulsi Gabbard was there. There are various other reasons. But in any case, the grand conspiracy is basically this investigation that appears to be going on now in the Southern District of Florida that starts with something Tulsi Gabbard is very involved in, which is alleging that intelligence officials in the Obama administration conspired to create these misleading reports, assessments of Russian interference that didn't tell the truth, that said that Putin was trying to help Trump, but actually he was trying to help Hillary Clinton. And it was all an effort to smear Trump. So she released a bunch of documents Tulsi Gabbard did over the summer to that effect. And there were investigations into John Brennan, the former CIA director in particular. But it seems like a bunch of related investigations have been shipped off to the Southern District of Florida.
- [16:41]
Scott R. Anders
And.
- [16:42]
Molly Roberts
And that what they may be attempting to do there is pull together not only these 2016, 2017 activities related to the 2017 intelligence community assessment of Russia's involvement in the 2016 election, but also matters as distinct as the search of Mar A Lago for classified documents that was part of the Jack Smith case there. And then they might pull into that to basically anything bad that's happened to Trump. So the idea here would be was part of this plot because eventually what they would theoretically allege here is a conspiracy against rights to deprive Trump of his ability to run for president and voters for him of their ability to vote for their preferred candidate. So the idea here would be, would you pull in? Also what happened in 2020 in Fulton county was that part of this vast left wing conspiracy to deprive Trump of his ability to appear on the ballot. So that's the thought there. It's crazy, but they're looking into it.
- [17:45]
Mike Fiemer
But that craziness actually brings into play a potential different avenue than conspiracy through which they could wrap this all up into one overarching theory of the case. And it involves a statute that at the state level was used against Trump himself in Georgia. And that, of course, is the Racketeering, Racketeer Influence Corrupt Organizations Act. And while they would never use this phrase, we know that the Trump universe very much likes to try and hoist people on their own petard. And I can see them trying to use RICO as the framework for getting this conspiracy into one indictment. And what RICO would offer them is that the statute of limitations for all predicate offenses is told so long as one of the individual predicate offenses is within the statute. So it sort of gives you a mulligan on stuff you did not charge within the anticipated time frame.
- [18:46]
Scott R. Anders
Interesting. That's really interesting. So it does seem like, at least unless they're hinging on the reporting exception that Troy laid out for us, that extends to 2027, if they're going to bring some of these other allegations in, they're going to need to have some sort of broader conspiracy or rico, which is kind of like a roughly conspiracy structure umbrella claim that's going to bring in a lot of these other acts. And this could be, who knows how broad you try to make it. It probably will depend on whatever facts you end up pulling out.
- [19:16]
Troy Edwards
I guess it's possible a court could look at that statute as potentially some kind of continuing offense.
- [19:23]
Scott R. Anders
Right.
- [19:23]
Troy Edwards
So, you know, it's not just an offense that, you know, I've robbed a house, that house is now robbed. I leave that, that is done. But if something can be interpreted as a continuing offense, it's a little bit like conspiracy. But if you can defraud through this second statute, this felony statute that's alleged in the search warrant over time, and it's not just multiple counts, but it's one ongoing fraud. And someone has recently, I'm just making this up, testified about that topic out of Georgia under oath, and the federal government wants to allege that part of that testimony was false or misleading and could tie that into. That's an ongoing Continuing offense. I mean, that's another way to potentially extend that statute of limitations.
- [20:07]
Scott R. Anders
Yeah, it's fascinating. Well, so we'll have to wait and see as we get more details about what exactly? If we get more details, they're anticipating about this. Let's go to the other part of the story, which is Tulsi's involvement. Mike, I want to come to you on this as obviously, you're somebody who could spend a good part of your career navigating that kind of line between federal law enforcement and intelligence community. How weird is this? Like, I think it's. We can all agree it's weird to have someone of that level hanging out with FBI agents doing a search. Generally, that'd be weird if it were the FBI director, I suspect, most of the time. Right. Like, even somebody in the Bureau, that's just not something you usually see the heads of agencies walking around doing. But what does it tell us that ODNI generally appears to be involved in this? Does it suggest that there is part of this is some sort of thread of allegations of foreign involvement or something that might be more conventionally under, you know what, the ODNI's jurisdiction? I'm not using that term technically, but kind of conceptual jurisdiction, subject matter area? Or is it just much more of a. Something a little more ad hoc? And is it a problem? Like, are there legal or practice barriers that usually would. Would insulate those people from this sort of work?
- [21:16]
Mike Fiemer
It's problematic for quite a few reasons, which we'll get into, but I think it's best thought of if you're looking for a simple snarky sentence explanation as Exhibit 2347 in the erosion of Norms. There is nothing in the statutory charter which gave rise to the Office of the Director of National Intelligence, nor in Executive Order 12333, as amended in 2004, which gives the DNI any role whatsoever in law enforcement operations. To allow somebody who does not normally have that privilege on the scene of an active search creates a whole number of problems that could very well come back to haunt the prosecution in whatever this case turns out to be. And this is just going to sort of get into the technicalities of what happens at a search or a crime scene. But essentially your number one goal as an investigator, outside of just gathering evidence, is to preserve the purity and sanctity of that evidence. And that means that from the moment you arrive on the scene, anything you touch has to have a chain of custody. In other words, there is an actual form that the agents doing the search will fill out that from the start of the search, every single thing they collect has to be in the position of somebody who is able to testify to it at trial, or it has to be secured in an area where no one can conceivably get to it, in which case the most recent person on the chain would still be considered the custodian. We don't really know what happened on this scene, but if at any point Tulsi Gabbard was alone with evidence, the prosecution is really opening itself up to a host of motions that could do everything from just getting that evidence tossed out to putting Tulsi Gabbard in a position where she may have to testify about what she was doing and why she was there. And I'm sure LT will agree with me, you generally don't want the senior, most intelligence official of your entire country testifying in open court court, because best case scenario, you have to go through a SEPA hearing and really narrow the scope of what they're able to talk about, and that's time consuming and difficult for most jurisdictions. Or alternately, you get her on the stand and she has to answer a whole bunch of questions about things the government would rather not reveal in public. It's really a no win situation for them to have her there. And, you know, I'll just, I'll give you an anecdote to describe how rare and just weird this is. I had to brief the Director of National Intelligence during the first Trump administration about an investigation that we were making public. And this was very unusual. But the indictment, when unsealed, would definitely impact intelligence community equities and have ramifications outside the country. So we felt the need to give the DNI some sort of heads up as to what was happening. But when we scheduled the briefing, we did not tell anybody at ODNI what it was about, and we arranged things so that the briefing would start literally one minute after the indictment had been unsealed. In other words, even though the person needed to know about it, we were not willing to to transgress the non permeable barrier that existed normally between the ODNI and law enforcement operations. This is. I'm going to temper my language because we're a family show, but this is pretty beyond the pale of what would normally occur at any scene of a search warrant.
- [25:35]
Scott R. Anders
And one aspect that she really leaned on really heavily in her letter. So we should note, the Democratic chairs of the House and Senate Intelligence Committees have, to their credit, been raising a big stink about this. Made a couple of very Targeted inquiries to the odni, to the Director, who then responded with a letter that was made public, I think believe by her office, which said essentially gave a couple of justifications for argument, pointed to various executive orders, talking about national emergency declarations, about election interference, things like that by the Biden Obama administrations, but then leaned on this idea of the MoU between ODNI and the FBI, noting that senior FBI officials at a lot of regional FBI offices are the domestic DNI representative. The term that they describe. Does that do anything to actually justify this?
- [26:23]
Mike Fiemer
It's a total non sequitur on her part. What the DOM DNI as it's abbreviated is, is essentially just somebody who convenes a meeting a couple times a year to make sure that all the agencies within any given region are on the same page with respect to matters of national security. But I think it's very important to note that when the FBI partakes in those meetings, it is doing so solely pursuant to its national security authorities, namely Executive Order 12 Triple 333, and not any of its law enforcement authorities which are granted to them by legislation. So she's mixing Apple's and coffee mugs like it's just. It doesn't really make a lot of sense.
- [27:13]
Scott R. Anders
And I could see Mike, your brain Kaiser, so saying your metaphor there as you look around your office desperately being like apples and.
- [27:20]
Mike Fiemer
Yes, yeah, it's. It's just this. That argument, frankly, is the argument of somebody with no experience in the matters they are discussing.
- [27:33]
Scott R. Anders
The whole letter really read like that to me as somebody who was vaguely familiar with some of these contours, but interesting. There is a lot of stuff being thrown against the wall in this letter, which is not an uncommon obfuscatory tactic, I would say really by lots of people, but including by this administration, which is you throw a bunch of related things that kind of look like they could seem okay against the wall. And that really is what this reads is basically says there are a bunch of executive orders about how there's national security implications of election security. Obviously the ODNI is the leading for intelligence coordination for that. Okay. That doesn't have anything to do with this. And then you' got this DNI rep situation. It's a kind of odd letter and it's definitely struggling a little bit, which is why I thought it's kind of interesting that they seem to be putting it forward so publicly and leaning on it, but who knows?
- [28:21]
Molly Roberts
Well, particularly when they've spent time dismantling a lot of the apparatus to make our elections more secure, that is.
- [28:28]
Scott R. Anders
Yes, there's a little bit of tension there as well, insofar as you're really going to making this as such a central sort of national security priority.
- [28:35]
Mike Fiemer
It's worth noting that one of Tulsi Gabbard's first actions upon assuming office was to dismantle the Foreign Malign Influence center at the odni. So there's more than a bit of irony that she is now staking her claims on foreign electoral interference to justify her presence at a crime scene.
- [28:56]
Scott R. Anders
Yeah, absolutely. Troy, let me come to you on some of the points that Mike raised about both the challenges that Gabbard's potential involvement might raise if this were to result in criminal prosecutions, which it's not clear it will at this point, although the president certainly has suggested as much in public remarks. But I want to lean into another aspect of this as well, in terms of legal uphill battles. There's also a constitutional dimension to all of this in that elections generally, both presidential elections and midterm elections, are really run by the states predominantly. There's interfaces with civil rights law, there's interfaces with certain federal equities that certainly come in, but the real weight of authority and the determination, particularly for things like determining the outcome and counting things constitutionally, is vested with state authorities. So I'm kind of curious about how that enters into a lot of legal actions. The administration might be contemplating about how to go about this before we even get to the suggestion President Trump has raised about federalizing any of this, if that's even feasible. Even if they're talking about potential legal actions flowing from this search, it strikes me that there's a lot of areas that's kind of fighting its way uphill, if anyone wants to do that. Seriously.
- [30:14]
Troy Edwards
Yes. There's a question of timing, too, when the right time would be for Fulton county or Georgia or whoever the officials are to launch something like that. And I think what you're getting at is this kind of concept of the 10th Amendment and kind of keeping the election clause and everything that flows from the election clause within the proper body, which is the local or state government. And Article 1, Section 4, Clause 1 of the Constitution makes clear that these elections ought to be run by these local bodies. Of course, it says, I think, that Congress can step in and enact legislation to talk a little bit about the outer perimeters of how they're run, timing wise, mechanism wise. But certainly the weight of it states that this power ought to be reserved for the local and state governments. And so the Question is, if Fulton county, for example, I think Molly mentioned that they've filed something against this search warrant. My guess is it's under Rule 41G to try and. Okay. And I suspect it's probably not. It's still under seal, and it probably will become out soon. But my guess is they could go light or heavy. Right. And the light is we just want the records back. You know, take these physical records. You took these items from us. Rule 41 allows us to now use the weight of the court to say, okay, we want them back. One part of pushing back against a criminal search warrant would be to say that the government has not only overstepped, but they now have access to information that's irrelevant to the investigation. And so they can say, look, it was an overbroad seizure. You took the physical ballots. There are digital versions of all of this that you also took, which are duplicative. Keep those. Give us the physical ballots, which are extremely important to maintaining elections, which, as you note, is reserved for them under the Constitution. That's a lighter touch. I think the heavier touch, which would probably be wise to wait till later, if the case proceeds, is to say, no, look, the search was just unconstitutional and under the 10th amendment to step in and infringe upon election integrity. In this way, you have now infringed upon a power that is reserved for our area of the government. I think that's probably not a successful attempt to push back on a search warrant that a magistrate judge has found probable cause for, but certainly a potential tool for them to use if the case were to proceed. But something you also mentioned that Mike flagged was what to think about the DNI being present if the case were to proceed. My national security prosecutor senses are tingling in that not only could the DNI be a witness, like Mike correctly pointed out, but it also opens up any future prosecution to an allegation from a smart defense counsel to say, well, not only is that a witness, but the intelligence community writ large now is part of the prosecution team team. And that's terrifying because the underlying premise of the tool that the government uses, which is the Classified Information Procedures act to navigate their way through public cases with classified information. One of the underlying premises is the intelligence agencies are not part of the prosecution team. I mean, Mike put it well, right. The FBI is uniquely situated to be both criminal law enforcement, but also in an intelligence body. The second we start bringing in these intelligence agencies into the fold of a prosecution team, the records that these intelligence agencies have, their communications that they have similar to the FBI when we bring a case are now potentially exposed to discovery rules that a prosecution team is going to have to navigate. And they can't just say, well, sepa this Classified Information Procedures act, we'll do a prudential search request to the agency. We don't normally have to, but we'll do it because that's what we do in national security cases, which would require us to reach out to that intelligence agency and say, hey, we're potentially bringing a case against this subject. Here are identifiers. Will you scour your holdings for us to come as the prosecution team, to come to your place as not the prosecution team, review those materials for discoverability and then we'll navigate the SEPA process that's challenged if the intelligence agencies are now in the fold as part of the prosecution team. Hard for me to see how a prosecutor looks a defense counsel on a judge in the eye and say they're not if the DNI is on scene using her phone of a criminal search warrant.
- [34:44]
Scott R. Anders
Yeah, yeah. Really wild.
- [34:46]
Mike Fiemer
To say nothing of the fact that what people don't realize is the government doesn't always cooperate with itself. And intelligence agencies tend not to be happy about opening up their various files to the Department of justice for PSRs. I, as I'm sure LT, has as well have worked individual cases against a single individual. Not an overarching decades long supposed conspiracy where negotiation can take months just to get the prosecutors in the door.
- [35:21]
Troy Edwards
All fair. All fair.
- [35:24]
Scott R. Anders
It's just a fascinating set of implications and a sense to which it seems like this action, which by Gabbard's own account was at the direction of the president who personally wanted her there, it's just strangely shooting itself in the foot. Something not unfamiliar to watching this administration. Which I think brings me to the closing question before we move on to this topic, which I want to turn to you on, Molly. Although Mike and Troy, I definitely want you guys to weigh in as well, which is that where does this all tell us about what the Trump administration is thinking about for midterms and for 2028 potentially? The president's been very vocal about corruption in elections. He now is saying, oh, we need to federalize elections at least 15 locales. I don't think we know exactly which ones. I was on Dan Bogino's podcast that he's now restarted now he's left the FBI, but notably A, that would be pose real constitutional questions if they could do it. B, there's very little audience for this, even among Republicans in Congress. John Thune's pretty much already shot it down. A number of other prominent Republicans already said this is just a no go, we're not going to entertain it seriously, even if we could. And they basically say we can't because it's not constitutionally viable. There are things that the executive branch can do or could do hypothetically, but many of them are going to raise legal challenges eventually. That doesn't mean it can't throw a ton of chaos into the mix. What does this tell us about where the game is going with the administration and where exactly that gets us? I'll share my kind of quick sense of this, but I'm curious whether you agree is that this seems like another case of the administration struggling to do something because the president wants it. They follow his directive because they understand in this administration the route to power is saying yes to the President or more specifically not saying no to the president, finding a way to kind of do what he wants enough to show it. And it leads to sort of volatile situation where even if they had a strategy that could be viable, they're undermining big aspects of it by this kind of ill considered, not thought through steps of which they're doing things. And that makes them both more, in some ways less dangerous because I see it strikes me as less likely they're going to be able to succeed at something broad systemic in a way that would really disrupt the outcome, but kind of more dangerous because they're really grasping at straws and incredibly not risky averse. They're just very willing to do lots of things and there's lots of things they can break and hurt and frankly people they can break and hurt along the way. So I don't know. I'm both more confident that they're not going to steal an election, but less confident that they're not going to try. And that is going to be really painful to work through. Am I too pessimistic? Not pessimistic enough. I'm just curious where you come out on that.
- [37:59]
Molly Roberts
I was initially going to say that your version of what's happening here is the cheeriest, least scary version. Right. They're just trying to satisfy one of the awful whims of the President. And it does raise the question to what extent is this backwards looking, he's mad about 2020. To what extent is it forwards looking? He wants to do something in the midterms or in 2028. But. But let's say it's not just backwards looking. Let's say it's forward looking and how frightening is that? I don't know. He says he wants to, like you said, nationalized elections, federalized elections. The fact that he said in 15 places was a little ominous to me. It suggested that he has.
- [38:39]
Scott R. Anders
There's a list somewhere, right?
- [38:41]
Molly Roberts
Exactly. I was like, I need to go on all the right wing podcasts and hear where someone says what the 15 places are. Because it's got there. It's got to be out there. Same. He got that somewhere. He didn't just like randomly say the number 15, but. Although, maybe. But in any case, I think that, I think a few things. One is there's obviously a question about how much authority Congress does or doesn't have to write rules related to the elections. Because, yes, the elections clause gives the state authority, but it also gives Congress some ability to oversee that. So what are they able to do? What are they not? It's a live issue. Now they're talking about the SAVE act, which is what I believe Caroline Levitt said was what Trump meant when he said nationalized elections, which doesn't make sense because it isn't a nationalizing elections thing. But that was her cover for him. So that's something they're discussing having to do with preventing non citizens from voting. And then there's an even more aggressive bill in play too. I think that has to do with nationwide voter id. And of course there's the executive order that the president issued late summer. I think that's under litigation right now, but having to do also with making it more difficult. Difficult for people to vote. But I think there's a lot of, like, he can't do that. And like, yeah, there's a lot of stuff he can't do, but it doesn't mean that he isn't going to try to do it. And I think the fact that he just went to a county and seized a bunch of ballot boxes makes me be like, why wouldn't he try to do that again right after the election happened? Why wouldn't he try to send troops in without a search warrant? I mean, yes, it sounds very doomer, but I don't think, considering the worst case scenario is completely crazy here and then where does that leave you? So to what extent is this just a test run for how far can we go when it comes to seizing materials related to elections? If Brad Raffensperger isn't going to find the votes for me, can I go in and find the votes myself kind of thing? I don't know. I think it's frightening.
- [40:43]
Troy Edwards
Yeah. I mean, the Bottom line for me is when I look at this, it's just another example of the damage to each of the institutions involved. Involved. I am sure there are a number of folks at ODNI who are shuddering that the DNI was at the site of a criminal search warrant because of the exposure to their equities and the importance of their work. I'm sure the FBI internal rank and file are shuddering that the President and the DNI put line agents in a position to have to be in a room that the President is calling in and giving them some instruction or order and pep talk as if it's the halftime of a football game. And then I'm sure U.S. attorney's offices that are involved in this are shuddering the rank and file that they have to now have their institution involved in what is potentially, you know, an abuse of the discretion that is reserved for prosecutors. So I don't know where it's going to go short term or long term, but I know that it's just, it's significant damage to each of the institutions involved and allows some of the American public to shrug their shoulders and say, you know, these are the things that happen. You know, intelligence agencies, FBI, the President, they all just kind of swirl around anyway. And that's just so far from the truth when it works functionally.
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- [46:31]
Scott R. Anders
Well, let us go on to the second warrant in our series of warrants today. This is not a new type of warrant. It's not that. But it's a warrant that's gotten a lot of new attention. That is the idea of an administrative warrant, a practice that has existed for a while now, has been used particularly frequently in the immigration context for a while now, but is getting new notoriety because of the enhanced status and authority ICE has been claiming it gives and instructing agents it gives in Minnesota and elsewhere. Mike, you have experience with these. Talk to us a little about what we know about administrative warrants and how they're being used and how that departs from what we thought we knew about administrative warrants.
- [47:10]
Mike Fiemer
Yes, administrative warrants are actually pretty rare, which is a direct result of the sanctity with which this country, all three branches have traditionally viewed the Fourth Amendment. They're essentially creatures of statute that allow individual agencies to obtain very specific categories of things without having to go to a federal to a federal judge. So I'll just give you some examples of them because they really are uncommon within the FBI. There are only two violations for which they are used, and that is crimes against children and health care fraud. Health care fraud because it is a very documentary heavy offense, crimes against children because oftentimes you need to know, for example, the user of an IP address or somebody's location in order to stop imminent harm to a child. The Secret Service similarly is allowed to use them for cases investigating a threat to the present. Once again, you might have to move quicker than the traditional process allows. And as long as you're not actually making entry somewhere but simply getting information or documents, the balancing of equities comes down on the side of letting the Secret Service get what they need. ICE has administrative warrants traditionally solely in order to get documentary evidence. So in other words, ICE can use an administrative warrant to get something like employment records from a corporation that they think is using undocumented labor. It's not meant to be an aggressive tool. It's sort of meant to help them funnel their energies into the things they should be doing by quickly separating the wheat from the chaff. In other words, if they suspect a factory or Something that employs 500 people is using undocumented immigrants, they get the Employment records, they get the tax records, they see that. No, there is paperwork for everybody there. Okay, we can move on to the next thing. I spent 16 years in law enforcement and I was a lawyer for about five years before then. And neither I nor anyone I know either who is an investigator or in the Office of General Counsel or a federal prosecutor has ever heard of an administrative warrant being used to justify making entry in somebody's home. This seems like a pretty clear cut violation of the fourth Amendment to me. And. But I would very much be interested in seeing the legal justification that dhs, OGC used to reach this conclusion.
- [50:11]
Scott R. Anders
Yeah, I want to ask you about this, Troy, from the kind of prosecutor's perspective, because my non, non prosecutor, but still lawyer perspective and having worked with prosecutors occasionally at various states of my career, you know, I look at this and I say, man, this is a really risky thing to rely on if you are going to try and prosecute anybody under this. Because if you have unlawful search and seizure, you collect evidence that you're going to use, all that stuff can be excluded at a certain point if you find this constitutional violation. But then this is immigration context, really. Right. You're just trying to get these people in custody to remove them. So does that matter as much to the law enforcement? Well, not just law enforcement, to the agencies that are involved here, to ice, to dhs, is this a way that they can get hands on these people? And is there no real risk that once they accomplish that, that's going to interrupt their objective to remove that person from the country? Is that the calculus here? Or is there more kind of hitches that they may yet encounter than they expect adopting this sort of strategy?
- [51:15]
Troy Edwards
Yeah, Another way to frame it in my head is how do you frame the externalities to these folks? And the externalities to me are, well, I don't want to speak for DHS or ice. It's hard for me to see what their equities are right now, but I suspect the equity is efficiency. And so to put my hat on as if I'm saying why would you use these administrative warrants? I mean, the pro is they are efficient. They don't require you to go to a separate neutral body and you have somebody in your office. I think I understand that there are a number of officials and titles across DHS that have the authority to sign these kinds of warrants and so you can get them and go. And so I understand from a logical perspective the push that direction, the externalities that they may not be envisioning because as you note, there's less the exclusion principle here. There's not going to be likely Fourth Amendment criminal perspectives here, stopping them or pushing them or preventing them from bringing a case. But there's kind of this, the broader public trust cost, which I think they've lost already. So it's possible that that externality is already sunk in. But another is financial. And I think that's a really interesting and hard question is what remedies are there for folks to bring and how do those costs get imposed upon ICE and dhs? If the Bivens doctrine or this kind of area where private actors, private folks can kind of bring legal action to impose costs upon the federal government or an agency in the government for wrongdoing is pared down over the years by Supreme Court opinions. So much so that I think the push now has just been from the Supreme Court to say Congress needs to act to legislate certain powers for private actors to bring. If that's the case, then it's hard for me to even envision the financial costs or externality that can be shifted upon ICE and DHS for engaging in these warrants. I think that is the biggest area, though, that I think that the cost will arise from.
- [53:24]
Scott R. Anders
I guess in theory you could see courts encountering these things. You could see counsel for immigration groups or people have a plausible case for representing clients that have a vested interest in future applications or reliance upon these things, seeking injunctions to stop ICE and DHS from relying on them, which then could come with contempt proceedings if you fail to abide by it. But we know that hasn't. At least we've seen compliance issues, according to the district court itself in Minnesota, around those things. Far from perfect compliance, although maybe that.
- [53:59]
Troy Edwards
Will get better, though that will introduce an interesting question. And Mike, you brought up the question of kind of what the legal justification by DH, DHS, OGC's analysis is that apparently underlies this memo, I suspect that would force to the surface what that analysis is because it'll allow DHS to have to face an arena where they say, well, no, the injunction isn't proper. Here's why the legal justification makes sense. So my perspective is, from a prosecutor's perspective at least, I think this is the wrong reading. But I think the reading, my guess is the reading from DHS OGC is to take this 1960 Supreme Court case where Justice Frankfurter and I think Abel mentioned in dicta that they wouldn't reach this question of whether an administrative warrant would allow folks to enter the home or would be proper outside of a judicial warrant, but then wrote a couple sentences that kind of talked about the importance or history of the use of these administrative warrants. My guess is that dicta, which spawned recently certain district court opinions, one in Texas, one in the central district of California, to take different opinions on how to read that dicta, Central district of California saying that dicta means the administrative warrants are not favored by the Supreme Court in place of these judicial warrants. The Northern District of Texas opinion saying the opposite, saying this dicta indicates to me that it is favorable. I think that's likely where this battle is playing out. I don't mean to justify it because I think it's wrong, but I think that's probably where this friction is coming from. And my guess is DHS and OGC might be leaning into that friction and saying, well, we take this side and we'll test it. Because if my memory is right, the memo specifically says the central district of California will be an area where they don't use these warrants. And if that's the case, that indicates to me they're looking at that friction, at that split.
- [55:52]
Scott R. Anders
Yeah, really interesting. Molly, let me come to you on the kind of broader policy implications that kind of come downstream from this. We've seen this reliance on these things be brought to the fore. Maybe they'll get litigated. Maybe they'll get ultimately the Supreme Court, if they take it that far, to intervene and clarify the issue for or against them. The other toolkit that you have in here is actual, you know, congressional pushback. We now have a deal where DHS is open just for the next two weeks, or funded, I should say, for the next two weeks, at which point they're going to have to have a longer budget conversation. Obviously, that was a vehicle that Democrats signed on to with the full intent to say we're going to use these two weeks to try and get some concessions legislatively. I'm kind of curious if you have a sense about what you think that potential for pushback is and where this fits in the kind of hierarchy of pushback. In some ways, this is like kind of an alarming thing that I think has a lot of people on the right who might be of a more conventional libertarian angle, a little bit more alarmed. Like you see Rand Paul, a couple other folks on the right be pretty vocal about objections and concerns about this. But does that mean that this is maybe an easier giveaway to Republicans in the Hill, or. Or do you not read it that way?
- [57:04]
Molly Roberts
I don't know. I Mean, I think it's tough because I think on the one hand, yes, this might be the kind of thing that concerns people on the right, and I suppose that could then be an area for ground to be given. But I also imagine that people on the left, like, yes, it's alarming, but also compared to a lot else that's going on, I feel like it would kind of fade into the background of priorities. I mean, it's the sort of thing that I, that I don't hear my friends who are generally upset about what's going on in Minneapolis talk about. Right. And I was also kind of thinking, there was the news today that Tom Homan was going to withdraw, I think 700 of the deployment there. And so that is a standing down. And one of the big points that he was making or one of the big changes that his arrival there was supposed to augur was a focus on targeted raids rather than these general sweeps. And these are targeted raids grades. Right. And in some ways, people see that as a drawdown. So on the one hand, this is really alarming and it actually is a huge break in how things have been done that could have big implications. On the other hand, I think if you're not as read in on what's going on, it doesn't necessarily look as upsetting and as scary as some of the other stuff that's been happening on the ground.
- [58:23]
Scott R. Anders
And for. Mike, let me come back to you just before we move on to the last topic, because a big part of this is going to be like, like, how important are these things otherwise, anytime you get some sort of pushback on a practice, there's always this concern being if you go too far the other way, Congress, you're going to be taking away a tool that we really need. In other contexts, is this a really valuable tool in other contexts? Like how tailored would folks in Congress need to be if they were to try and curtail reliance on these sorts of things?
- [58:50]
Mike Fiemer
It's incredibly widely used. It would be difficult to overstate how frequent they get issued. They require nothing more, really, than a supervisor signature, which is not a particular high level of management. But I do want to push back real quickly, just gently on something. Molly said we need to be very cautious about buying into the administration's guarantees that these are targeted operations, because the alacrity with which these administrative warrants could be issued means fundamentally that they can turn them around in a matter of minutes and decide to make somebody they saw on the street a targeted operation. You know, in the course of a half hour. So, so let's not take home in guarantee that these are targeted to mean that they are planned far in advance or well thought out or only dealing with certain candidates for removal. A targeted operation can be done very quickly. And there's another consequence the DHS OGC isn't thinking of that I'm just going to highlight very quickly which is a lot of these operations and removals are taking place in a task force environment where ICE and particularly ERO are not the only law enforcement agency. And if federal agencies that do not have this administrative subpoena power make entry with ICE pursuant to them and depending on how the memorandum of understanding is written, those other agencies employees could really be opening themselves up to substantial liability for being outside the scope of their employment.
- [60:49]
Scott R. Anders
Interesting. Really interesting. I mean that really so often with some of these things comes down to that accountability question and the availability of those tools which we haven't seen be widely available, whether it's Bivens, whether it's different types of liability, whether it's scope of qualified immunity. But we're really seeing the central limits of those get tested. Let us go because we're running short on time to our third warrant in our stream of warrants here. And Troy, I'm going to come to you first on this story. The last few weeks we've been following I think kind of in the background seeing I think a couple of weeks now it's almost been a topic we've talked about. We haven't haven't risen to the fore. It's gotten bumped by other three here on national security. We thought it was time to talk about it about this Hannah Natenson investigation, Washington Post reporter who had her personal and professional electronics seized by the FBI as part of an investigation into Defense Department contractor leak which I believe they actually have brought charges against somebody now or at least what they think is associated or at least it's been reported in some circles it's been associated. I believe the leak was something related to the Venezuela military operation earlier last month if I recall correctly. Regardless, the key point here is this question about going in seizing reporters electronics apparently retaining them. As of a couple hours ago she and her Twitter still had a message up that seemed to suggest she had not yet received her materials and electronics back. You know you've been involved with investigations like this and talk to us about what the usual approach is for handling investigating a source of a reporter and where this falls on that sort of spectrum because I think this has a lot of people a little bit more alarmed about the approach they seem to be taking and the fact that it seems to suggest that maybe there's a view that Nathanson herself might have engaged in some sort of criminal activity, which could be really chilling if that's the approach they end up taking to a lot of reporters, particularly working on classified issues, as this all gets back down to a leak in classified information sort of case. So talk to us about your experience around these and how this fits with it or doesn't. Yeah.
- [62:48]
Troy Edwards
So just as a little bit of background for the case, some of the framing too is there are two parts in my head, right? There's the case against Aurelio Luis Perez Ligones, and then there's this search warrant against Natenson, the reporter from Washington Post. And while they're interrelated, I think it's important when we kind of dive into both to make sure in our minds that they're somewhat separate. And the reason I say that is because the case against Perez Lugones, at least in my experience, looks like a legitimate 793 case. I mean, the only thing I'm seeing from the outside and the public is what's been filed, right? The indictment, the search warrant affidavit or the complaint affidavit, and then some of the materials from the parties.
- [63:30]
Scott R. Anders
And 793 is the espionage Act. Right. Or he provisions the espionage act.
- [63:34]
Troy Edwards
Exactly. 793E in particular, which I think he's indicted with five or six counts of that. And there's a. Just to take it one step back, there's a spectrum of these kinds of classified information handling statutes. There's 18 USC 1924 on the low end, which is kind of mishandling classified information. Then there's this 18 USC 793 in the middle range, 793E in particular, when the information is known as what's called national defence information and you unlawfully retain it or unlawfully transmit it, then you've kind of in this middle tranche, which is a higher statutory maximum of 10 years. And then even more extreme on that spectrum is the 18 USC 794, which is when you've taken that NDI and you've shared it in particular with for example, a foreign nation state that you know may use it to harm national security interests of the United States. And so I view it as this X spectrum. And where Perez Lugones charge is in that middle spectrum of 793E and he's accused of both allegedly transmitting it. And it appears to Natenson, and then also unlawfully retaining it. Particular documents. And the classification of those documents will matter later if there's ever a sentencing. And they range anywhere from top secret to at least one document that's confidential. And so that appears to be the criminal case in Perez Ligones situation. And then there's this search warrant that seems to have been born from the criminal case against this Washington Post reporter Natenson, which has now spawned, I think, appropriately so, a lot of questions about government norms, whether there are laws that prevent this that have been violated, or whether there are norms and policies that have been violated. It strikes me that the meat of the conversation ought to take place in that second category of norms and policies, mostly because as a prosecutor, when I look at this, while you may be concerned about the existence of classified information on someone's phone, as a responsible prosecutor, you'd be thinking to yourself, okay, how do I handle the fact that this person's phone is a reporter? Maybe we should think through these things. I will say in reading through some of the materials from the Washington post, using again, 41G to claw back these materials and the government's response to it. It's a really thought out, developed response. They've presented a filter protocol, which is normal. They have proposed how a taint team or a team separate and apart from the criminal investigation investigators will review this with FBI agents who are separate and apart from this, all of that is a relatively normal proposal from the government. And now that's all not getting at the kind of broader concerns here of the person's reputation and profession as a reporter, which I think it's hard for me to know how the prosecutors thought through that without seeing anything publicly filed on it. But certainly they must have thought through what the consequences are here. And unfortunately for the prosecutors involved, if they're good actors and acting responsibly, they're not operating in a vacuum. They're operating in an administration that has lost a lot of trust and credibility with the public. And so a lot of folks are going to look at this and appropriately so, ask the question of whether or not this is related to this reporter's actions reporting critically against the government.
- [66:55]
Scott R. Anders
Yeah. Molly, you of course, are a Washington Post alum and are a journalist and have worked with many journalists still probably, I have no doubt in touch with many journalists, talk about that chilling effect sort of mentality. Like, you know, frankly, to some extent, I think journalists are a kind of a rough and tumble bunch that likes to push back on this and is not as easily Deterred, as some may be afraid of them being deterred in some regards. Part of that, though, is because they've had this kind of robust sense of both norms and constitutional rights backing up a lot of conventional journalistic behavior. So how big a risk is that sort of chilling effect in these sorts of cases and where the sense of the line is. One part of this that I think is interesting is this idea that we saw come out in the WikiLeaks context over the last couple years where. Well, there's this line between. Where Julian Assange could be subject to certain types of prosecution and criminal liability, in part because he facilitated the accessing of this classified information, passing it on. He helped provide the programs that Chelsea Manning used to remove files and transport it to them. But that's something that some people, you've seen different views on how far that is removed from a journalist's role or not. So do you have a sense about how fuzzy is this line? Where does it leave people?
- [68:13]
Molly Roberts
Yeah, I mean, fuzzier than ever. What was it Mike said about Fulton county that was exhibit2347 in the erosion of norms? So this would be Exhibit 2000. I think that journalists previously felt people were alarmed about Assange, but it seemed like there was a distinction that could be drawn where you could say, he isn't acting in this capacity as a journalist. Exactly. And certainly if you're a reporter, a beat reporter at the Washington Post, you see yourself as distinct from Julian Assange. And there, I would imagine, in a couple different ways. Well, you don't think that there's, I mean, there's any plausible allegation accusation that you're a foreign agent. Right. I mean, you're. You're, you know, you're working for the Washington Post. And most, pretty much everyone I knew for working for the Washington Post was pretty, you know, in it for the. For America, for the United States, for the, you know, Democratic norms and the free press and the Constitution and all that good stuff. So I think it felt very different. And I think that there is a real chilling effect when the line that you believe to be in place appears to be getting eroded. And that line would be, first of all, the search, because it is highly unusual, and even the subpoenaing of emails in the past provoked a huge amount of controversy in this part of what led to guidelines at the Department of Justice. And I'm sure that Mike can talk more about this, but that made media leaks much harder and made it much less likely even, that there'd be subpoenas of journalist materials and much less searches of their homes in the wee hours and the seizing of all their electronic devices and basically their entire kind of professional universe of sources. So I think that. That even the idea that that can happen, that someone can come and take all your work, right, not even just something related to the case is alarming in itself. But then I think the kind of looming possibility that remains here of a prosecution is more alarming still. And they said she wasn't a target of the investigation. But when you look at the affidavit that accompanied the search warrant, it includes examples of. Of her talking to the source and saying things like, it would be really good if you can do it safely, if you could get us more of this information. And they're suggesting there that she knew it was classified. So I think the idea there is, does that get more into possible conspiracy? Does it get into aiding and abetting? And the closest analog we have to that. The problem with finding case law on a lot of this is that they haven't gone after journalists. But I think the closest analog would be what's known as the AIPAC case, where two AIPAC lobbyists were taken to court for their involvement in getting classified information. And in that case, ultimately the judge said, well, you have to prove that they knew that it could cause harm to the United States that the lobbyists did when they did this. And then the government administration changed over and the government decided, we don't want to meet that burden in, and we're just going to drop the case. So we never really got an answer. But there's the possibility that they could bring a case with a journalist for the same thing. And then it would kind of be a question of is there a First Amendment defense? And the case law there when it comes to not classified information, but other privileged information, suggests that you'd be weighing the interest against each other. Freedom of the press, First Amendment versus whatever compelling interest the government might have. And the courts, including the Supreme Court, have suggested that national security might be the most compelling interest of all. So it doesn't look good if a case is brought. And I'd be a lot more worried now if I were a journalist, because before it seemed like you wouldn't even approach that point. And we're at the very least approaching it at the moment.
- [72:15]
Scott R. Anders
Mike, let me turn to you for a little bit of the investigator's perspective on this, as I know you've also worked in cases that are, in this general space. Part of the concern here, the part that I know the reporter seems most vocal about besides the case, is the fact that you've again seen this seizure of this whole range of materials that presumably contains not just this one source's material, but also the whole range of people that Ms. Nadenson has engaged with as part of her journalistic role, many of whom don't have any relation to this sort of operation. That's not unique to this case. That is to some extent a risk anytime you're dealing with people who are involved in investigation that have privileged information or otherwise protected information. So talk to us about, does this seem like if this is an investigation that the FBI is going to be pursuing, this is the way they go about it? And what does it mean about how those devices, records, materials should be being handled in the background to hedge against the risk of inappropriately treading upon First Amendment journalistic rights in a way that is unnecessary for this investigation. If you were to accept this investigation as appropriate. The broader sort of fallout potentially from that.
- [73:26]
Mike Fiemer
Yeah, so I think this is pretty uncommon. But that's not because of any particular philosophical bent on the part of investigators or agencies, but rather because pretty much since the Obama administration, when Eric Holder was Attorney General, there were a series of memoranda and internal policies that really limited the ability of a investigators to even open a media leak investigation, let alone go after a journalist in the context of a search. But I'm gonna, I'm gonna make an argument I don't think I actually believe in, but I think we in good conscience should at least articulate it for the audience. And it's the argument in favor of chilling journalists speech in this context.
- [74:20]
Scott R. Anders
We say as a journalistic organization.
- [74:22]
Mike Fiemer
Yes, yes. Well, you know, hypocrisy is the tribute. Something, something, something. But you know, the reason we have an ecosystem of regulations about classified material and the reason we have an espionage act is that there is a broad consensus, at least that there is certain information that if our adversaries got a hold of it, could cause grave national security damage. And there are different ways for an adversary to get that information. Obviously the one people think of is an insider threat. A mole in the US Government absconds with it and gives it to them. But if they read about the exact same information in a newspaper, we're still disadvantaged in the same way as if they got it from a spy. So there is at least a colorable argument that doesn't often get verbalized because frankly, it sort of offends a lot of cultural assumptions that people who tend to end up in the Justice Department or the journalism world have. But there is an argument for going after journalists who publish classified information in terms of what the agents are going to be looking at. Search warrants are scoped. The agents should not be looking at things that do not pertain to their exact case. That's actually my minimal concern here. And just to throw a wrinkle in something Troy said earlier, you know, we should note the Espionage act is not only about classified information. It's about national defense information, which is something different. That phrase was created when the Espionage act was promulgated, before we had our contemporary classification system. I'm only aware of one case in US history out of Edva in the 90s, where, or maybe early 2000s, where there was a prosecution for unclassified information. But let's just recognize that the statute is written less carefully than we would like.
- [76:47]
Scott R. Anders
That I think is fair. The Espionage act is a complicated device.
- [76:51]
Troy Edwards
I think that's right. And it's important to point out, because I'll also kind of jump onto a odd point, as Mike phrased. Maybe I don't believe in fully, but just to flesh it out, if you're the government or if you're a citizen of the government, I think very biased, you would want your government to think, okay, how do I handle this national defense information now that it is outside the bounds or holdings of the United States government, particularly if I believe it's been properly classified so it doesn't reach the hands of, of foreign adversaries? That's a legitimate thought calculus that the government ought to be operating in. Where I think this administration has gone wrong, where folks like Bondi have set their prosecutors up for failure, is the way in which they execute on watering down policies and allow themselves vulnerable to attacks for intention that may not exist on the part of the trial attorneys looking at a case like Perez Ligones. So when Bondi in April 2025 comes out and completely resins Garland's media policies that did make it much more difficult to issue subpoenas, open investigations, engage in search warrants or charges, that is, to me, harming the line. When they engage in what may be a legitimate Espionage act case, and then when Bondi comes out and says, you know, the government and the Department of War executed a search warrant today, that is not normal. And it again opens up the trial team to damaging critiques of whether the Department of War is now calling the shots for DOJ and whether they're part of the prosecution team. And so I hesitated. It seems A little bit like Mike and I are now jumping on and saying, you know, take down the journalists. By no means do I mean to say that. I just mean to say that there are points here the government ought to be thinking through and recovering highly classified national defense information. And I trust that Molly will bring voice to something. I can as well, but which is to say there are concerns on the other side which we should care about.
- [79:01]
Molly Roberts
Yeah, right. I mean, I was going to say, let me argue for something that I do believe in, which is basically that you're weighing interests here. Right. So you're talking about national security and our adversaries getting access to this information, but on the other side, you're weighing accountability. And I'm glad that the Washington Post was able to publish a story about the second strike on that boat in Venezuela. Right. And so we have the Espionage Act. That was previously and still because there's been no prosecution against Hannah Natenson deployed against the leakers. And to me, that seems like a totally fine balance. It's not like we're not doing anything. Right. So you're trying to deter the people who might leak this information. Do you need also to go after the journalists who occupy this position where they're supposed to be communicating information to the public and using their discretion and using their best wisdom? I mean, we've seen plenty of cases where the press hasn't moved forward with the story. The New York Times, it was reported, didn't move forward with a story about the Venezuelan mission. So I think the balance was fine as was. I don't think the balance was on the side of we're throwing up our hands about the leaking of classified information. Maybe investigators were being a little too hands off on media leak cases. Maybe they'd gone a little too far in that direction. But to go so far in the other direction that prosecutions of journalists are being contemplated seems to me like way overcompensating for whatever problems may have been there.
- [80:36]
Troy Edwards
Yeah, that last point is compelling to me. I do think that the pendulum overswing is a real concern here, particularly because they're not operating in a vacuum. Again, they're dealing with administration that has called into question their motives.
- [80:47]
Mike Fiemer
All right, I'm going to disagree with Molly here on this one. Intelligence comes from sources. The majority of it comes from human sources. Even signals intelligence is usually enabled by a human source in a foreign conscious country where if the compromise is discovered, it can be traced back to them. The fact is, journalists are manifestly unable to weigh the potential damage to a human life that is helping the United States simply because they are not read in to anything that is not leaked to them. So they're operating in a contextless environment. And I understand there is a compelling interest in journalists bringing wrongdoing and corruption to light. I'm just saying there's a competing equity that they often times do not always think of that could result in people helping our country lose their lives. And there are times that they have held off on stories where that could happen. But there's also times where organizations like the New York Times have decided that it's up to them whether to publish a case officers true name who was involved in certain CT programs. And you know, the government's not always going to be right, the press is not always going to be right. But the working assumption we've always had that sunlight should be shown on almost everything is really leaving a lot of equities out of the equation.
- [82:23]
Scott R. Anders
That's a fair point. Well, we have more on this debate in time to come because the debate that's been with us for a long time and it's not going to go away today because I have some views too, which I don't necessarily agree with any of you. But that's fine. I'll save them. I'll save mine for another day because for the time being, we are out of time for this episode of Rational Security. But this would not be Rational Security if we did not leave you with some object lessons to ponder over in the week to come until we were back in your podcatchers. Molly, what did you bring for us this week?
- [82:47]
Molly Roberts
I was going to ask whether it would be bad to recommend season two of the Night Manager, which would be three weeks in a row. I'm not going to do it, although do recommend it.
- [82:55]
Scott R. Anders
Evidently. It's great. People are into it.
- [82:58]
Molly Roberts
Okay, I could just recommend that. I was trying to stick to bringing an object. This is a little depressing, but I brought a clip of the first editorial I ever wrote for the Washington Post which was on Metro's ongoing hazards and was about some smoke leak in Metro and how they could try to avert future smoke leaks. So the news today was that there's been mass layoffs at the Washington Post and it's kind of part of the story of the Washington Post decline. And in my opinion of Jeff Bezos, capitulation to the Trump administration. And so one thing they did was vastly restructure Metro. They also cut a bunch of foreign staff. They completely eliminated sports and books. And the editorial board is writing editorials like in praise of the Department of War. Now, they're certainly not writing about Metra's ongoing hazards. And I brought it partly kind of as a reminder of what the Post used to be. Not only this really robust national outlet, but and also my hometown paper, a local paper. And, you know, it's a lot of what made the Post special to me and that I'm sort of in mourning for at the moment.
- [84:09]
Scott R. Anders
Yeah, it is a really sad day, I think, for anybody who's spent a lot of time. I am a D.C. local, so I grew up reading the Post and have subscribed, I think, my entire adult life, which may be coming to an end at some point soon, sadly. But it's a great institution with amazing reporters. I particularly was devastated that they've fired their entire crew of Middle east reporters who really did some of the best Middle east reporting of the last few years. It's really it's devastating and it's a real bummer. It's a real national loss. And, you know, I still hope maybe somewhere out there Jeff Bezos or someone else will come to their senses and understand there's something worth preserving. But I'm not holding my breath for it at this point. Mike, on that somber, depressing note, what do you have for us? Hopefully something equally somber and depressing, or pick us up a little bit.
- [84:50]
Mike Fiemer
My object lesson is a cause for joy in the Feinberg household, and it is the just released 10 LP vinyl box set of Miles Davis Multi Night Stand at the Plugged Nickel A Jazz Club in Chicago, recorded in 1965. I have literally been waiting close to three decades for this to come out because it was originally released on CD and as a young associate at a law firm, I loaned it to a co worker who lost two of the discs and it went out of print. So I have not been able to listen to one of the night sets in close to 30 years. So I have been doing nothing but spinning this vinyl, much to the consternation of my wife and infant child, for the past week, and I can unhesitatingly recommend it to any jazz fan out there among our listenership.
- [85:54]
Scott R. Anders
Wonderful, wonderful suggestion. I've had this kind of box set floating as a very amateurish occasional jazz dabbler, which maybe you've inspired me to take the plunge into buying it. I don't know. We'll have to wait and see once I get my my Just got my turntable up and running again after a few months out of commission, so maybe this is the way to Christen it. Well, for my object lesson this week, I will bring something on the lighter side, I will say a friend and former colleague of mine who decided to take their leave of the U.S. department of State has taken their usually very somber, sober analysis and mind in a very different direction. They started a substack that I think it's fair to say embraces some of the absurdity of our particular moment, particularly if you are somebody who looks at policy, particularly national security policy, and they've started something called ridiculocracy. I think it's idiocracy that had already been taken about 20 years ago. This is a substack that is a satire substack. A surprisingly sharp and well done satire substack. I've been watching Aaron do that. Aaron Foust who runs the website It's Not a Secret. I was checking just to make sure I could reveal his name. But it's Aaron's substack and it is LinkedIn. Aaron was a phenomenal analyst at the State Department. We actually were interns together at the State Department 20 odd years ago, did some backpacking around different corners of Middle east together and we've been off and on in touch since then. He's a great guy who did great work at State of a very somber, sober variety. And this is anything but equally trenchant and cutting and insightful satire of the State Department and broader US Government that he's now spending his time on. I really recommend folks check it out. There is a lot of entertaining stuff in there, particularly if you're an ex state or foreign policy or national security person. But I think, I think anybody will appreciate some of the articles Aaron's putting together here as he enjoys some time off after his time in government. It's worth checking out ridiculocracy.com it spells easier than it says, but check it out and we'll have a link in the show notes there. Troy, bring us home as our first guest. You get the last object lesson. What do you have to share with us?
- [87:46]
Troy Edwards
Rebuttal address. I love it. That's why it was great being part of the government for so long. Last word. So I have a serious note though I'll try and end it with some humor. There is a symbol that I would like to start floating around the team of the ecosystem of former government folks that I've been calling the government in exile. And I think this ecosystem of folks will be frankly our saving grace, a huge part of refixing this government and building it in the years to come. And there is a hat that I have, though I should have brought it into the room, but I'll show a picture of it is a hat that is a play on the phrase FedEx, which is reversed that says Ex Fed and it is the symbol of the government in exile. A number of former prosecutors from DOJ are now buying it and going to wear it around as a symbol of their pride for what they took in the oath that they continued to serve even though they're not in the government anymore. So I would encourage our listeners to if you see an Ex Fed hat around, give them a nod. Give them your own hat tilt whatever you do. And I guess that sounds very Western. I don't know that anybody does hat tilts anymore, but I encourage you to see the Ex Fed hat or wear it if you're part of the government in exile. And welcome to the team.
- [89:03]
Scott R. Anders
I feel like 10 or 20 years ago this would have been ripe material for a challenge coin when those were all the rage. I feel like they've really declined. I was really in government during the heyday of the challenge coin, particularly like Duty Intelligence circles. But you know, it's a logo with lots of potential applications. Well, wonderful. That's a great suggestion, something I and a couple other folks in my household who are also ex fets may take advantage of. But regardless, until then, that brings us to the end of this week's episode. Rational Security is of course a production of Lawfare, so be sure to visit lawformedia.org for our show page, for links to past episodes, for our written work and the written work for the Lawfare contributors, and for information on lawfair's other phenomenal podcast series. While you're at it, be sure to follow LawFair on social media wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening. And sign up to become a material supporter of 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 producer this week was me, and our music, as always, was performed by Sophia Yan and we are once again edited by the wonderful Jen. On behalf of my guests Troy, Molly and Mike, I am Scott R. Anders and we will talk to you next week. Until then, goodbye. Activecampaign is the marketing automation platform built for big swings and big dreams with intelligent suggestions powered by AI and your data, generate ideas in seconds, import your.
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