The Lawfare Podcast: Rational Security – The “Sweet Dreams Are Made of Cheese” Edition

Date: October 1, 2025
Host: Scott R. Anderson
Panelists: Alan Rosenstein, Anna Bauer

Episode Overview

This episode of Rational Security takes a deep dive into a news-heavy week at the intersection of national security, law, and policy. Besides a lighthearted opening about dad jokes and sabbatical life, the meat of the discussion is a critical, at times scathing, look at three major legal and policy developments:

1. The indictment of former FBI Director James Comey.
2. California’s new law restricting the masking of law enforcement officers, especially federal agents like ICE.
3. California’s groundbreaking and controversial new AI safety law.

Each topic is dissected for legal implications, political context, and broader governance concerns—with panelists uniting their characteristic wit and expertise.

Key Discussion Points and Insights

1. The Indictment of James Comey (“A Higher Loyalty”)

[05:19–39:02]

Background and Context

• President Trump has long targeted former FBI Director James Comey as a political enemy, blaming him for the "Russia hoax."
• Recently, the DOJ, allegedly under direct pressure from the Trump White House and against career prosecutors' recommendations, indicted Comey for making false statements to Congress and obstructing a congressional investigation.
• The preceding US Attorney (Eric Siebert) refused to proceed and resigned, replaced rapidly by Trump loyalist Lindsey Halligan, who lacks federal prosecutorial experience.
  • Anna Bauer [07:31]: “Lindsey Halligan went forward, presented to the grand jury on Thursday. And then, of course, as you mentioned, the grand jury agreed to indict Comey on two out of the three counts.”

Legal Substance & Charges

• The indictment is extremely bare-bones: just two brief passages allege Comey knowingly lied about authorizing someone to leak information to the press.
• The core of the indictment centers on Comey’s 2017 and 2020 congressional testimony about not authorizing anonymous sources on the Clinton investigation.
• The factual allegations and supposed falsehoods are not spelled out; instead, the public and legal community are left with scant details.

Panel’s Analysis

• Alan Rosenstein [18:43]: “This is... the wholesale collapse of the Justice Department as a rule of law institution... you don’t go after [a] high profile political figure...in a page. You do what’s called a speaking indictment—it’s long, it’s beefy, it gives all the details.”
  • Significantly, no career prosecutors were involved; even AG Pam Bondi and others reportedly had strong reservations.
  • Concerns are deeply procedural, ethical, and institutionally damaging.
• Anna Bauer [23:32]: DOJ guidelines forbid bringing a prosecution unless likely to secure conviction beyond a reasonable doubt; Halligan ignored detailed declination memos from experienced staff.

Grand Jury Dynamics

• Indictment required only probable cause, a very low standard.
• Notably, a significant number of grand jurors held out against the indictment—a rare occurrence in such one-sided proceedings.
  • Anna Bauer [17:50]: “Considering how one sided this...is, it is remarkable that at least two and potentially nine grand jurors did not find probable cause to indict Comey.”

Vindictive Prosecution & Legal Strategy

• The hosts foresee Comey’s team will file a motion to dismiss for vindictive prosecution, likely the “strongest ever filed in American history.”
  • Anna Bauer [30:29]: “Comey has...an actual public statement from the President of the United States telling his attorney general...to move forward with these prosecutions...a vast body of public evidence...this prosecution was brought in retaliation.”
• If successful, this could cut the case short without trial.
• The case is positioned as a constitutional test of executive overreach and the durability of rule-of-law norms.

Notable Quotes

• Alan Rosenstein [22:43]: “He’s not so different than my 2-year-old toddler in this respect. He wants it, he wants it now...His id has been satisfied with a dominance display, frankly.”
• Anna Bauer [23:32]: “All these people...showed her this declination memo saying...there’s not probable cause and it’s not going to hold up...And yet, she moved forward with it anyway within a span of 72 hours. That is really disturbing.”

2. California’s Masking Law for Law Enforcement (“A Right to Bare Faces”)

[41:01–62:41]

Law Overview

• California’s new law requires law enforcement, including federal agencies operating in California, to publish public policies outlining when face masks can be worn.
• The law creates processes for challenging these policies and penalizes violations, including imposing civil liability and removing certain immunities.

Constitutional Debate

• Alan Rosenstein [43:14]: Asserts that the law is “pretty obviously unconstitutional”—a clear case of state nullification under the Supremacy Clause.
  • “Once you go down this path, it gets ugly very quickly. And so what annoys me about this...is that this is just posturing on the part of California...this is just state nullification.”
• Anna Bauer [47:09]: Pushes back, pointing out that current ICE policy is ambiguous or non-existent; questions if requiring no masks truly interferes with federal authority and distinguishes this from classic nullification cases.
• Scott Anderson [51:42]: Sees the law as cleverly designed to force federal agencies to clarify policies without directly impeding their legal authority.
  • Notes that the law’s broad exceptions may protect it from a direct supremacy challenge, but constitutional issues could still arise in as-applied challenges.
  • “As a[n]...effective piece of legislation intended to force clarity on the legal limits...it actually strikes me as really cleverly designed.”
• The panel draws historical parallels (e.g., Johnson v. Maryland, the postal worker prosecution), weighing federal necessity versus state regulatory authority.

Memorable Exchange:

• Anna Bauer [58:52]: “But what's it nullify? It's not nullifying anything.”
• Alan Rosenstein [58:57]: “Now we have, I think, a real nullification issue.”

Policy and Political Context

• Concern is raised about the precedent such state actions set for intergovernmental relationships and the potential for “states’ rights” rhetoric to be weaponized by either party, depending on which is in power.

3. California’s AI Safety Law (“Legal Code”)

[62:41–74:45]

Law Overview

• Known as SB 53, recently signed by Governor Newsom.
• Imposes transparency requirements on frontier AI companies (with revenue >$500 million/year), requiring public disclosure of AI safety plans, whistleblower protections, and the creation of a task force to explore a public “Cal Compute” cloud.

What’s New?

• Unlike a previously vetoed law, this version is supported—or at least not opposed—by major AI firms.
• Rather than mandating substantive safety standards, it mandates public disclosure, presumably leveraging reputational and market pressure.

Panel Discussion

• Alan Rosenstein [63:53]: Outlines the law’s functions; frames disclosure as a clever “forcing function.”
  • “...it doesn’t say that they have to have safety plans. It’s that they have to publicize the extent of their safety plans...the answer...can be like ‘FU’ to all of those things, but you have to publicize them.”
• Discusses potential legal challenges under First Amendment compelled speech doctrine (Zauderer standard: compelled statements must be factual and uncontroversial), and policy concerns about states regulating industries of national or global consequence.
• Scott Anderson [74:02]: Praises the law’s consumer safety angle: “It is...a real first step towards...consumer safety...and that can bear on consumer social responsibility choices.”
  • Suggests transparency requirements are a low barrier for large firms but provide valuable information for markets and the public.

Notable Quotes & Moments

• Alan Rosenstein [18:43]: “This is... the wholesale collapse of the Justice Department as a rule of law institution.”
• Anna Bauer [30:29]: “It seems like...the strongest [vindictive prosecution claim] that has maybe ever been filed in American history.”
• Scott R. Anderson [51:42]: “As a[n]...effective piece of legislation intended to force clarity...it actually strikes me as like, really cleverly designed.”
• Alan Rosenstein [63:53]: “It’s a kind of forcing function. It’s clever...even Xai Elon's company...is going to be vaguely embarrassed to publish on their website, ‘we don’t do any of this stuff.’”
• Alan Rosenstein [22:43]: “He's not so different than my 2-year-old toddler in this respect. He wants it, he wants it now.”
• Anna Bauer [48:41]: “The 92 Dream Team versus your seventh grade JV basketball B squad”—on the mismatch between Comey’s legal defense and his prosecutor.

Timestamps for Key Segments

| Topic | Start | End | |------------------------------------------|--------------|-------------| | Lighthearted Opening & Dad Jokes | 01:06 | 05:09 | | Topic 1: Comey Indictment | 05:09 | 39:02 | | Topic 2: CA Law on Masked Enforcement | 41:01 | 62:41 | | Topic 3: CA AI Law | 62:41 | 74:45 | | Object Lessons & Sign-Off | 74:57 | 87:55 |

Object Lessons [74:57–87:55]

• Alan Rosenstein: Endorses “vibe coding” with Anthropic’s Claude Sonnet 4.5 AI—coding assistants that level the playing field for hobbyists.
• Scott R. Anderson: Spotlight on NoteBookLM by Google, praising it as a transformative research and organization tool for legal academics.
• Anna Bauer: Recommends stand-up comedy clubs for much-needed laughter; shares a field report on New York’s comedy scene and lack of Jimmy Kimmel jokes after recent news.

Final Thoughts

This episode is a tour de force on how politicization, legal process, and political context interact in American governance—capturing both the urgency and absurdity of the moment. The panel scrutinizes critical legal norms being stress-tested, the states’ pushback against federal authority, and the frontier challenges of regulating AI—all with intelligence, candor, and a bit of razor-sharp wit.

For deeper dives:

• Lawfare Live and the Lawfare Substack for more analysis
• “Scaling Laws” podcast for SB 53 AI law
• Anna Bauer’s standup experiment: Check Lawfare’s Substack and Dog Shirt Daily

Notable quote (Anna Bauer, 23:32):
“Lindsey Halligan has been told by people who have way more prosecutorial experience than she does...this is not, there’s not probable cause and it’s not going to hold up...And yet, she moved forward with it anyway within a span of 72 hours. That is really disturbing.”

Listen at: Lawfare Podcast
Contact: Rational Security welcomes listener feedback and possible future live show suggestions!