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- [00:00]
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- [00:30]
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- [01:07]
Scott R. Anderson
So, Alan, as this is one of our new efforts to do some of these on video, everyone can appreciate the fact that you are in fact very much a law professor on sabbatical, meaning you are unshaven in a T shirt that is maybe one size two soda, perfectly skinny.
- [01:23]
Alan Rosenstein
Scott, I will have, you know, kind.
- [01:25]
Scott R. Anderson
Of in a tights velt way. You're feeling very, very confident in your T shirt wearing.
- [01:30]
Alan Rosenstein
I'm wearing my Minnesota landscape arboretum hat. I'm. I'm a. I'm a dad. I'm a midwestern dad.
- [01:36]
Anna Bauer
Yeah.
- [01:36]
Scott R. Anderson
And you're.
- [01:36]
Anna Bauer
The joke on your shirt is also a dad joke.
- [01:39]
Alan Rosenstein
For those listening. I picked this up. I saw this in a. I saw this in a T shirt store in Asheville, North Carolina. Because of course. And I had to immediately buy it. It says sweet dreams are made of cheese. Who am I to disabree? And people. Pretty good people look at it and it's like they take a second more.
- [01:58]
Scott R. Anderson
Of a University of Wisconsin.
- [01:59]
Anna Bauer
I'm sure that dads love that shirt.
- [02:01]
Alan Rosenstein
Plenty of moms like this shirt too. Thank you very much. You have to be over the age of 35 to like this shirt. I think that's the main. That's the main thing.
- [02:09]
Scott R. Anderson
That's the goal. And spiritually maybe well over 40.
- [02:13]
Anna Bauer
So what does one do on sabbatical? Like, are you. Like, are you. I mean, obviously I know you're working on projects, but like, are you watching tv? Like, are you.
- [02:22]
Scott R. Anderson
That's the biggest display of your ignorance is the idea that Alan is actively working on projects this early in sabbatical.
- [02:28]
Alan Rosenstein
I think on mapping. I feel like this is the year where I realized personal project. No, I mean, look.
- [02:34]
Anna Bauer
But I mainly just want to know, like, what's the TV consumption like?
- [02:38]
Alan Rosenstein
I am, I, I, I watch no more TV than I did. This is the problem with sabbaticals, which is that like you, you don't teach. But teaching is like only a fairly small part of the job and mostly just means that I do more lawfare stuff. I do, I do the, I do my other job. I'm sabbatical. I am, I mean, don't tell my dean because I'm very grateful for it, but I think sabbaticals are wasted on people like me. Like we.
- [03:02]
Scott R. Anderson
This is public.
- [03:04]
Anna Bauer
You should not say that.
- [03:06]
Alan Rosenstein
University of Minnesota Law School. Please do not listen. I am not giving my sabbatical back. I signed the paperwork. It is mine. God damn it.
- [03:12]
Scott R. Anderson
Foreign. Hello everyone and welcome back to Rational Security, the podcast. We invite you to join the lawfare team as we struggle to make sense of the week's big national security headlines. Joining me this week are two of my wonderful repeat customer colleagues here on Rational Security. First up, we have senior editor Anna Bauer, one of our litigation correspondent extraordinaire. Anna, thank you for coming back on the podcast.
- [03:42]
Anna Bauer
Thanks for having me.
- [03:43]
Scott R. Anderson
You look very professional. Very professional environments. I like the fall fabric jacket. Say it's really like it's bringing the season. And now let me pan to the left. See. Oh my God. Research director Alan Rosenstein, who appears to have just walked in from his lawn. Alan, thank you for joining us.
- [04:01]
Alan Rosenstein
That you are exhibiting about my sabbatical is just dripping from you. I can tell. This is, this is the sourest of grapes.
- [04:07]
Scott R. Anderson
That seem pretty sweet. It does seem pretty sweet. I will say. I, you know people, people here at the office, a lot of them dress very casually. I'm like a dress up for the office guy. I feel weird when I don't have like, like a dress shirt.
- [04:17]
Alan Rosenstein
Just know. Everyone likes. Everyone likes that guy.
- [04:19]
Scott R. Anderson
T shirt.
- [04:20]
Alan Rosenstein
Just know.
- [04:21]
Scott R. Anderson
I know, I know. It's like, it's like officially, it means I'm officially old. It's that and the fact that I don't know how you use Snapchat. I think the two things that officially made.
- [04:28]
Alan Rosenstein
Are you a bow tie guy?
- [04:29]
Scott R. Anderson
Pass into the past generation.
- [04:31]
Alan Rosenstein
Can I admit, can I admit myself?
- [04:32]
Scott R. Anderson
I adamantly am not a bow tie guy.
- [04:33]
Alan Rosenstein
I'm a hundred percent.
- [04:34]
Scott R. Anderson
I know we've talked about this on the podcast before.
- [04:36]
Anna Bauer
You're a bow tie guy.
- [04:38]
Alan Rosenstein
Any chance, Any chance I get to wear a bow?
- [04:42]
Scott R. Anderson
Alan was also an acapella in college.
- [04:44]
Alan Rosenstein
And it's not really. I have many unappealing qualities, but this has got to be a top three interesting.
- [04:49]
Scott R. Anderson
Both are up there, I'm not gonna lie. But regardless, that's not what we're here to talk about. We are here to talk about national security news. We have some headlines in the news, some big events going down. Honest to goodness, it has been the newsiest week I have seen in a very newsy year. I think last week has been one of the newsiest we've seen. We could not get it all in today. We're gonna talk about a bunch of stuff next week that happened this week.
- [05:10]
Alan Rosenstein
That'S been time to get to that. I like panic slacked. Scott this morning being like, are you listening to this insane Trump military speech? We have to cover it. And Scott's like, let it, let it simmer. It'll be next week. Let it marinate. Which is fair.
- [05:19]
Scott R. Anderson
We'll be here like we already had an agenda of like some wonky topics we're going to dig into and then a bunch of news happen. We're going to circle back to it next week. We still got important stuff to talk about today that's interesting. We have interesting stuff and interesting perspectives on topic one for this week, a higher loyalty. The Justice Department appears to have bowed to the demands of President Trump last week when, over the reported objections of several senior officials, successfully sought the indictment of former FBI Director James Comey for alleged false statements he made to Congress. But the prosecution is raising lots of questions among legal experts about the procedures, the substance, and what exactly its odds of her success are moving forward. What should we make of this move by the Justice Department? What does this tell us about the prospects for weaponization moving forward? Topic two, a right to bare faces. California has enacted a new law that, among other measures, will require law enforcement officers of all stripes to limit their use of face masks. But legal experts are torn on whether this policy can constitutionally apply to its clear target, the ICE personnel and other federal law enforcement officers who have started wearing masks for even routine law enforcement activities. How likely is this new law to achieve its Goals and Topic 3 legal code? California has passed a first of its kind AI safety law with the support more at least the acquiescence of industry leaders. Does this point a way forward for AI safety legislation? And how will it make us safer? So our first topic, which I think is a big news story to Say the least. Possibly one of the biggest news stories we have had of this past year. It's an event that many saw as a possibility coming down the pike. I don't know if everyone believes it was going to happen, but it did last week, finally, and that is the indictment of former FBI Director James James Comey by a grand jury in Alexandria, Virginia, I believe, in the Eastern District of Virginia, on two counts out of three presented to the grand jury, one for obstructing a congressional investigation and another for making false statements to Congress. Both presume, we're assuming, are related to the same set of testimony, but I don't think we 100% know about that. Anna, talk to us a little about what we know about the indictment so far and kind of what led up to this pretty monumental story, this event that happened this past week.
- [07:31]
Anna Bauer
Yeah, I mean, look, I'll start with kind of what led up to it, because I think it's important for contextualizing all of this. Of course, as I think most people who are rational security listeners will know, Trump has a lot of beef with the former FBI Director James Comey. And it goes way back, related to what they call the Russia, Russia, Russia hoax. And they meaning people on the right. And, you know, for years, he has been railing against Comey, saying that he's guilty of something, although it's never entirely clear exactly what. You know, he's been very clear that he thinks that Comey is a bad guy, that he's a guilty guy. And. And in Trump's second administration, you know, he's continued some of this talk. And as of about two weeks ago, there was news reporting in which the top prosecutor in the Eastern District of Virginia, a guy named Eric Siebert, basically, you know, refused to move forward with both the investigation of James Comey and then also Letitia James, another perceived political enemy of, of Trump. And as a result, he was essentially kind of forced out of the job. He resigned. And then over a series of days, you know, it seemed like maybe there was someone, a person named Maggie Cleary who was going to take over there. But in a series of public posts, Trump addressed to his Attorney General, Pam Bondi. He urged her to move forward with these prosecutions, specific, specifically against Letitia James, James Comey and Adam Schiff, and then mentioned a woman named Lindsey Halligan, that is his former criminal defense attorney, someone who does not have a whole lot of experience in federal court and who has never prosecuted a single case in state or federal court. And so he ends up replacing Eric Siebert, who had just resigned with Lindsey Halligan, who. Who, within a matter of, you know, 72 hours, although it was reported that she was presented with a detailed memo in which prosecutors recommended that charges not be sought against James Comey because they did not think there was probable cause to support it, much less to go all the way to trial and have a jury find a conviction beyond reasonable doubt. Despite being presented with that declination memo, 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. Here is what we know about those charges, Scott, and we don't know a lot because there's only two really brief passages that comprise the sum total of the indictment. As you mentioned, one of the charges is for false statements to Congress that relates to this September 2020 testimony that Comey gave. And honestly, this is kind of where things start to get real stupid and real complicated real quick, because you've got to know a little bit about the backstory here and the fact that Comey has previously testified before Congress, including in 2017 when he had an exchan with Chuck Grassley. And during that exchange, Chuck Grassley effectively asked him, you know, have you ever authorized someone else at the FBI to be an anonymous source in news reports about the Clinton or the Trump investigation? Comey denied that he had. Flash forward to 2020. Senator Cruz, during Comey's testimony before the Senate Judiciary Committee, asks Comey about this exchange with Grassley. And then he also pivots to a different subject that relates to Andy McCabe, who at one point was the deputy director of the FBI. And there was a leak investigation surrounding McCabe's authorization to disclose information to the Wall Street Journal. So it's a kind of muddled question, right, in which he's bringing up this old testimony and then also asking about Andy McCabe. But in effect, Comey says, I stand by my testimony that you summarized, presumably referring to the 2017 exchange with Grassley in the indictment that was just issued last week, prosecutors alleged that by standing by or reaffirming his testimony, in which he said that he had not authorized anyone to be an anonymous source in news reports that Comey had knowingly and willfully lied about, that in fact, he had authorized someone to be an anonymous source, specifically in relation to, we believe, the. The reports about the Clinton investigation. We do not know, though, Scott, based on the indictment, what exactly the, you know, factual basis is for prosecutors saying that Comey lied about that or what supposed, you know, authorization it's referring to, it says that Comey did, in fact authorize someone who is identified as Person 3 to anonymously leak information to media outlets. At first everyone thought, as I mentioned, it was about the McCabe matter, but now there are many reports from various media outlets who say that it instead relates to a matter of Comey supposedly or allegedly authorizing his friend. And as someone who served for a time as a consultant or a special government employee at the FBI, his name is Dan Richmond. He's also a law professor. And so we believe that it relates to this allegation about Comey authorizing Richmond to be an anonymous source in news reports. That is what multiple outlets are reporting. And we can go into the backstory a little bit more, but I think I've said enough in terms of the background and what's happened here to, you know, kind of start the conversation.
- [14:29]
Scott R. Anderson
That's incredibly useful. And I think, and I should say we've talked, and particularly you have talked a ton about this case on Law Firm Live on our substack conversation. So anybody who wants to do deeper dives and some of the details around this, look back for those conversations and, of course, written work that we've had from folks on the website over the last week or so. I don't want to dig too much into the speculation of the underlying facts in this case at this stage, in part because I'm not sure that's productive. And I think that's something worth bearing in mind as we see the media kind of spin out around a lot of this, because this isn't going to stay secret for long. Obviously, the factual allegations, the indictment, are so bare bones and limited. It would be impossible for Mr. Comey to launch legal defense if he needed to do that. He's going to demand a bill of particulars, a document that lays out in clear detail the factual allegations against him, and then that is going to be filed before a court. I think it'd be very unusual for it not to be. So I'm assuming that's what's going to happen, and then we'll have a sense of what the actual, specific, underlying factual allegations are. I believe there's a lot of parts of this that are worth talking about it procedurally and implications wise. Let's start with kind of like some of the procedural questions, right. Because here we have a case where, at least from the media reports, this was a prosecution pursued under a lot of pressure from the White House personally, from President Trump via Social media. President Trump, we know, has said very damning things about former FBI Director Comey before, accused him of being an enemy, and has said variety of things, not all of them factually substantiated, to our knowledge that he was involved with various hostile actions against him and his administration while he was in office. And since leaving office at the FBI director, he's removed fairly early in Trump's first term. And we saw these allegations come forward, and it got 14 of the jurors on board for the two counts that ended up surviving. The third count fell off out of 26, I think it was 14 and 12. So let's start.
- [16:33]
Anna Bauer
So just it's 23 is the maximum number of grand jurors that can be empaneled. I will note that, you know, there's a lot of reporting that it was 14 out of 23 grand jurors. I've reviewed the transcript of the presentment, which is when the indictment is handed up to the judge in open court by the foreperson of the grand jury. And it is true that There were only 14 grand jurors who found probable cause to indict on these two counts. But we do not know what the quorum was of the grand jury. Like, we don't know if it was 23 or if it was the minimum required for quorum to vote, which is 16. But regardless, what we do know is that there were at least two to grand jurors who would have voted against the indictment. Are you following? If my math is mathing here, because you have to have a minimum of 16 for quorum and only 14 voted to indict, then that means, you know, the difference is two. So at least two would have voted against bringing the indictment. It could be more because you could have up to 23 grand jurors.
- [17:51]
Scott R. Anderson
Okay, thank you. That's useful. So this question about the grand jury ratio, I think is a good place to start, right? Because that's something there that we can look into. Think about how DOJ's usual practices. We know a lot of people had reservations about bringing this case in the first place, including, at least from some reports I was reading, potentially Attorney General Bondi herself, in part because they were worried that the evidence wasn't strong enough to stick, but they were able to persuade a majority of the grand jury. We don't know the exact margins of it, that there was probable cause for this case. Alan, talk to us about what we can draw, if anything, about the ratio or how this kind of philosophy going in to a Grand jury is for doj. I mean, how are Justice Department attorneys, of which you used to be one, although I know you have limited prosecutorial experience, but still useful for our purposes. Talk to about how by your understanding, this fits within DOJ practice generally.
- [18:43]
Alan Rosenstein
I can't believe you would downplay my incredible six months of trying.
- [18:48]
Scott R. Anderson
It's more than I have trying or.
- [18:50]
Alan Rosenstein
Anna, I believe drug cases in Maryland. I was very bad at my, it was remarkable how bad I was. But that's a, but that, that, that's for a Patreon exclusive episode. And look, I, I should also say probably by way of disclosure that I, I am not exactly an unbiased commentator when it comes to Comeygate. You know, I'm, I'm close friends with, with his daughter Maureen, who went, went through her own purging, of course, when she was fired earlier this summer at sdny. We're friends from law school and, and you know, I've met Comey a few times. So again, I am not unbiased. I don't think you have to be, though, particularly biased. Just there is a lot of bad stuff going here. I mean, this is, I mean, the polite way of saying this is that this is very unusual. The more accurate way is that this is the wholesale collapse of the Justice Department as a rule of law institution. And so, you know, we can wordsmith however we want. So I'd say just a couple of things of how bizarre this is. So the first thing is how bare bones the indictment is, right? Like, if you're going to go, if you're going to go after one of the most polarizing, let's say it, right, high profile political figures of like the last decade, right. You don't do it in a page. You do what's called a speaking indictment, right. It's long, it's beefy, right. It gives all the details right. I mean, I remember there have been a million of these, many of them against Trump. But to give us sort of more less politically charged version, I mean, we all had a good laugh as we were reading through this, the indictment against Bob Menendez and the gold bars. And like that's how you do it, right? And part of that you do it because it's a show of strength. But part of that you do it because, especially when there's such a politically salient prosecution, you want to from the very beginning, reassure the public that you're not just doing this for LOLs, like you have an actual case. And of course, just because it's in the indictment doesn't mean it's true.
- [20:31]
Unidentified Contributor
Right.
- [20:31]
Alan Rosenstein
It's all alleged and stuff like that. But the Department of Justice is not in the habit of putting stuff in speaking indictments that are then false.
- [20:37]
Unidentified Contributor
Right.
- [20:37]
Alan Rosenstein
So the fact that you end up with this one page or two page, however long it is, indictment just shows it's another example. There's probably not a lot going on there.
- [20:44]
Unidentified Contributor
Right.
- [20:45]
Alan Rosenstein
Another point is, of course, the refusal of any career prosecutor to have anything to do with this.
- [20:51]
Unidentified Contributor
Right.
- [20:51]
Alan Rosenstein
Which is an indication of just their professional judgment, of their sense of ethics, of their sense of not wanting to get disbarred after all of this.
- [20:58]
Unidentified Contributor
Right.
- [20:59]
Alan Rosenstein
Then you have the reports about Pam Bondi not wanting to be involved in this. And that's important not because the Attorney General should actually be involved in a. Necessarily a prosecutorial discretion made by some U.S. attorney's office, but because in a situation like this, this would be relevant. Pam Bondi is, of course, very tied to Trump, so you'd think she'd want part of this to make her boss happy. And again, to be polite. Pam Bondi has not distinguished herself either in her commitment to the rule of law or basic legal competence. I won't go on a TikTok tangent here, but I've ranted about this before. So the fact that this is too far for Pam Bondi, Right. Is a hell of a thing. And then, of course, you just have. I mean, the public. I mean, that's the thing about Trump, right? We've been talking about this for a decade now. He does it in public, Right. Which almost makes it harder to pin something on him because, you know, there's this like, well, if he's doing it in public, he has nothing to hide. I mean, he's just shameless. So that's the issue here. Putting pressure on the Department of Justice, you know, announcing all this, installing a completely unqualified former defense counsel of his right, who may very well honestly not have any confidence in this case either, to the extent that she even. And I'm not trying to be mean here, because being a prosecutor is hard and I don't pretend to have expertise, but neither does she. So, like, I just think she's. When I say she's incompetent at this job, I actually don't mean that as a criticism generally, for she is, technically speaking, incompetent at this job in the way that I would be incompetent at this job. So she may literally not know whether this is a winnable case. Now, everyone around her has told her that it's not so like presumably that says something. But she may not know. And even if she does know, she may not care because I think it would not surprise me, especially given Trump's extremely short attention span. He just wants what he wants now.
- [22:43]
Unidentified Contributor
Right.
- [22:44]
Alan Rosenstein
He's not so different than my 2 year old toddler in this respect. He wants it, he wants it now. He doesn't really care about what happens five minutes from now. So he got to indict Comey.
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Unidentified Contributor
Right.
- [22:52]
Alan Rosenstein
He got to. This is a family show. So they're not. I will, I will, I will let the audience think of the vulgarities that I'm thinking.
- [22:58]
Unidentified Contributor
Right.
- [22:59]
Alan Rosenstein
But I really think it's like that.
- [23:00]
Unidentified Contributor
Right.
- [23:00]
Alan Rosenstein
His, his ID has been satisfied with a dominance display, frankly.
- [23:05]
Unidentified Contributor
Right.
- [23:05]
Alan Rosenstein
Which is all that this is, this is not actually that complicated. And so whether or not the charges get dropped or thrown out by quote unquote, so called judges, who cares?
- [23:15]
Unidentified Contributor
Right.
- [23:16]
Alan Rosenstein
Trump got to express his will.
- [23:19]
Unidentified Contributor
Right, Right.
- [23:20]
Alan Rosenstein
Trump's will triumphed today, as it were. And Halligan may not care because, you know, sure, she might get in bar discipline, but you don't need to be a member of the bar to be a fourth circuit judge.
- [23:32]
Anna Bauer
Yeah. And look, if I could just underscore here too, some of the ethical duties that are at play, you know, in the Justice Department principles of Federal prosecution and the Justice Manual. You, you are not supposed to bring a case unless any of this. Unless you, yeah, you're not supposed to do any of this. But also, you know, you're not supposed to go before a grand jury and try to indict someone and bring the full power of the federal government against them in terms of bringing a criminal prosecution unless you believe that it is supported A by probable cause, B, that a jury would con. Likely convict beyond a reasonable doubt, and C, that that conviction would be held up on appeal. You also have ABA and like bar ethics rules that say, you know, you're not supposed to do this unless it, you believe that it's supported by a probable cause, etc. Etc. Etc. Lindsey Halligan has been told by people who have way more prosecutorial experience than she does because basically everyone has more prosecutorial experience than she does because she has none. All these people have told her and have reportedly showed her this declin, detailed declination memo saying this is not, there's not probable cause and it's not going to hold up if you bring it before a jury. And yet she moved forward with it anyway within a span of like 72 hours. That is really disturbing. What I will say additionally, Scott, about the grand jury question in terms of procedure and what the numbers suggest, grand jury presentations are super one sided. It is, you know, the rules of evidence don't apply, so you can use hearsay. You can use things that you wouldn't usually be able to get in at trial. You usually, in federal practice, defendants do not have an opportunity to present witnesses. They definitely don't have opportunity to do things like cross examination. The prosecution, although under Justice Department policies, are supposed to present exculpatory information that they're aware of. There's no legal obligation to present exculpatory evidence. So it's all kind of like whatever the prosecution presents is like all that the grand jury gets. And the standard of proof, probable cause is super, super low. It's not beyond reasonable doubt. So all of that said, considering how one sided this, you know, grand jury presentation is, it is remarkable that at least two and potentially nine grand jurors did not find probable cause to indict Comey. And I'll, I'll add too, that in a false statements case, it seems to be that it would be particularly easy to, you know, get a grand jury to find probable cause because all you have to do is show two apparently contradictory statements that maybe there's more context to it. But all the grand jury really gets to see is, you know, these apparently contradictory statements or evidence.
- [26:51]
Alan Rosenstein
I mean, just to say about that, I mean, I've managed to get an indictment before a grand jury. It's not that. I'm just saying that because I was bad at that job. It's not that hard. So the no true bill is a big deal. I do want to just rant for just one more second here because, you know, I sometimes read right wing media, you know, because it's interesting and also for my sins. And I will say some of it has been heartening. I would give props to Andy McCarthy from the National Review, who I think has had the appropriate scathing take on this. And I will say that because the National Review is sometimes wobblier on these issues than I want them to be. And so they did a very nice job here. But there are other commenters and other outlets who have been, you know, reveling in this and doing the whataboutism and the. Well, the Democrats started all of this and they went after Trump. So if you. They went after Trump. So how can you be sort of going after Comey? And look, anyone who has listened to Rational security in the last few years will know that I am probably pathologically both sides in my orientation. But this is not that case.
- [27:51]
Unidentified Contributor
Right.
- [27:51]
Alan Rosenstein
And I just think it's really important because I think this is going to be a thing that you hear a lot from people who should know better. And then also to be fair to like maybe millions of Americans who are more on the right wing of this, the political spectrum who you know, are, had not been enmeshed in all these details for the last several years and think, well, look, I mean they point after Trump so like they're going after Comey. You know, it's all kind of seems fair. It cannot be emphasized enough how different the processes were in those two investigations.
- [28:18]
Unidentified Contributor
Right.
- [28:19]
Alan Rosenstein
These levels of insulation, the levels of bureaucratic review, the incredible care, the piece by piece putting together investigation, the incredible enmeshment of the career staff.
- [28:29]
Unidentified Contributor
Right.
- [28:29]
Alan Rosenstein
And all of this that was leading up to whether it was the Mar A Lago indictments or the Jan6 indictments. I mean these are not comparable situations. Now, of course one can still disagree with those indictments. One can say they were ill advised, fine, whatever. I'm not trying to litigate that in this moment, but from a process perspective, not to mention a substance perspective. But as Scott said, we don't know anything about the substance or it's unhelpful to speculate at this stage. It's such a difference. And I think it's very important not to view this at too high level of abstraction because the answer, when this chapter of magnet history is written 10, 15, 20 years from now, it's going to be tempting to look back and say, well, both sides went at it for a while and like maybe in some case there was some truth to that. But it can't be that you never prosecute corrupt politicians because that corrupt politician might come back and make random shit up against random people. Like that cannot be the rule here, otherwise you're unilaterally disarming. And with that I will, I will stop frothing at the mouth for the next five minutes.
- [29:28]
Scott R. Anderson
So I think it's a fair point and I think it's the key point I want to get across here. Like there's a lot of problems with this case potentially just getting a indictment through a grand jury. While frankly I had my doubts whether they were going to succeed at that last week and I'm a little surprised they did. Isn't that hard. I think something like 99% of grand jury indictments brought to grand jury actually come back because it's a lower standard of proof.
- [29:52]
Alan Rosenstein
100% for ham sandwiches, too.
- [29:53]
Scott R. Anderson
There you go. Yeah. DC maybe a slightly different numbers lately, as I discussed previously on the podcast, but, you know, we have. You have lower cause, and it's just probable. Standard petite jury to be. Who actually have to convict has to be unanimous beyond a reasonable doubt. That's a much higher bar. And you have a defense actually presenting exculpatory evidence and making arguments to the contrary. But there's a chance. We don't even necessarily get that far. Right. Because there's a possibility of vindictive prosecution as a legal defense. And I think you've dug into this a little bit. Can you talk to us a little bit about what that might look like in this particular context?
- [30:30]
Anna Bauer
Yeah. So vindictive prosecute, a motion to dismiss for vindictive prosecution. You basically have to show that, like, there's, you know, animus that the prosecution or people who are, you know, agents directing the prosecution towards the defendant for exercising some legal right, you know, like a First Amendment right of speech, that kind of thing. That's like the general legal standard, and we don't have to get more into it. But the idea is that, like, you're being prosecuted for revenge. And it seems like that, you know, is exactly what's going on here. And we know that that's exactly what's going on here because Trump has quite literally been saying it for years. If you look at the number of public statements that Trump has made about Comey over the years in which he is just kind of vaguely referencing some type of criminal conduct and then making conclusory assertions about how Comey should be in prison, you know, there's just a vast body of public evidence that Comey and his attorneys could put forward to support this idea that this prosecution was brought in retaliation against him for some, you know, exercise of a legal right. And what's important to say here, Scott, is that, like, these. These motions to dismiss for vindictive prosecution. I'm speaking specifically about vindictive prosecution because there's also an option of selective prosecution, but I think vindictive prosecution is the more likely one. That is, like, you know, the strongest and most applicable here. But it. These are motions that are really hard to win. You know, every criminal defense attorney who thinks about filing one of these knows that it's kind of like, you know, the Hail Mary that you take, like, when you're, like, on the other side of the court and you just kind of, like, throwing the ball, hoping that maybe something will stick. But in this case, it's Likely the strongest that of any vindictive prosecution that has maybe ever been filed in American history. Even the public record alone seems to be sufficient to support it. But you can also get discovery on a vindictive prosecution motion in which, you know, you can get more evidence about what was going on behind the scenes and the process that led to Comey's indictment. I will add to this that Trump himself in the New York case, in the classified documents case, in the D.C. case related to election interference, filed these selective or vindictive prosecution motions. For example, in the case before Judge Chutkan that related to efforts to overturn the election, you know, they cited things such as private remarks that Biden made to his inner circle in which he said things like. Or allegedly said things like, you know, I wish that Merrick Garland would hurry up or something to that effect. Things that are very. And again, these are reported private remarks that are being made. And those are the types of comments that Trump's team include. And Todd Blanche, the number two at doj, is the guy who filed this, though that's what they were saying was sufficient to be a, you know, to. To succeed in a vindictive prosecution claim for Trump's cases. Meanwhile, Comey has, like, an actual public statement from the President of the United States telling his attorney general effectively move forward with these prosecutions. He's got, again, like I just said, the years of comments that he has made about Comey. So I think that it's really clear that there's a very strong case to be made here. But if you get to a vindictive prosecution motion and it's successful, it means that the. The case will be thrown out, so to speak, not on the basis of Comey being factually innocent. It's on the basis of, you know, these process issues that we've discussed. And so I think that his legal team, if, as we've seen in the video that Comey released in the wake of the indictment, he said something to the effect of, okay, let's have a trial. I'm innocent. And so I think that, you know, his legal team and Comey himself will have to make a judgment call of, like, you know, do we want to move forward with trying to get the charges dismissed on vindictive prosecution grounds or actually try to prove factual innocence at trial. I think it would honestly be, you know, I think any defense attorney is probably going to recommend, like, we have to file this vindictive prosecution motion because it's so strong, but who knows?
- [35:59]
Scott R. Anderson
Yeah, it is really remarkable. And it is like, it's an interesting test case in this case because you are bearing in mind that there might be limits on the types of discovery. Particularly you think about how the Supreme Court thought about the President's role in prosecutorial discretion in the context of immunity decision. I think that language has probably been overtaken to some extent. But there is a question about how much scrutiny certain core aspects of the President's duty may be subjected to. That said, you can't completely cut out discovery from this context because that would essentially wipe out the meaningfulness of these sorts of defenses or these sorts of legal causes. So, you know, long story short, I think this is really an exceptionally interesting case and it may be a little bit of a double edged sword for the government in this case because you're going to get a lot of facts come forward that are really, really tricky. And I wouldn't be surprised frankly if we see a long, long fight over discovery of this that prevents. Because you have to resolve that motion, the vindictive prosecution motion, before you can move on to the trial. I mean, this could be years long litigation involving a lot of these difficult questions. And I gotta question whether that's gonna be a more painful process than the administration's fully anticipated. And the President's certainly not anticipating it. Cause he's just adding more fuel to the fire. He's giving more and more data points they can use to not just potentially prove vindictive prosecution, but also make the case for more further discovery. And talk about how all this kind of ties together and actually impacted the decisions by the Justice Department.
- [37:29]
Alan Rosenstein
It's too bad that Comey isn't a really experienced federal prosecutor with really experienced federal prosecutor buddies that can help defend him, because that sort of person would really know what sort of motions. But it's too bad that he's not so. Oh well.
- [37:43]
Anna Bauer
And I. One other thing I will add too is that like maybe Lindsey Halligan doesn't care what happens to her bar card after this administration is over. But I suspect that a lot of these career prosecutors who actually know what they're doing do. Uh, and I think that, you know, any of them who are thinking about getting involved in this are going to have concerns likely about the prospect of selective or vindictive prosecution discovery and how that might then impact a later bar ethics complaint. And so if on the 1. On the 1 side you've got James Comey and his very experienced criminal defense and former federal prosecutors who are defending him, on the other side you've got Lindsey Halligan, and maybe nobody, you know, as someone, someone put it as like what is. I'm terrible at sports references but what is it? The 92 Dream Team versus Angola, which is like a reference to the slightly.
- [38:42]
Scott R. Anderson
Unfair to Angola, but okay, fair enough.
- [38:44]
Anna Bauer
Right?
- [38:45]
Alan Rosenstein
Don't compare, don't compare Angola to Lindsay Halligan. You know like Angola is a perfectly nice country.
- [38:50]
Anna Bauer
Yeah. In response to that, someone else was like that's so unfair to Angola. It's actually like 92 Dream Team versus your seventh grade JV basketball B squad.
- [39:02]
Scott R. Anderson
I think Angola is actually one of the better basketball teams in Africa. Having just googled it is my understanding from at least an African basketball league. So just throwing out there. We're not trying to slam you. Angola, that's not about. This isn't about you.
- [39:16]
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- [40:20]
Scott R. Anderson
Mint is still $15 a month for premium wireless.
- [40:22]
Alan Rosenstein
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Scott R. Anderson
Yet, here are 15 reasons why you should.
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Alan Rosenstein
One, it's $15 a month. Two.
- [40:30]
Scott R. Anderson
Seriously, it's $15 a month. Three, no big contracts. Four, I use it.
- [40:35]
Alan Rosenstein
Five, my mom uses.
- [40:36]
Anna Bauer
Are you.
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Scott R. Anderson
Are you playing me off? That's what's happening, right? Okay, give it a try.
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Alan Rosenstein
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- [40:49]
Anna Bauer
See mintmobile.com.
- [40:52]
Scott R. Anderson
Well folks, we should move on to our second topic because we have at least one other questionable legal action to debate vociferously.
- [41:02]
Unidentified Contributor
Yeah, from.
- [41:02]
Alan Rosenstein
From slamming Angola to slamming Scott Anderson There you go.
- [41:06]
Scott R. Anderson
This topic. Alan and I had a heated exchange on Slack over the other week.
- [41:10]
Alan Rosenstein
Deeply nested Slack to the that just went on forever.
- [41:14]
Scott R. Anderson
In my defense, I was desperately trying to get something else done but could not stop slacking with Alan about it. And there's this question of the California masking law that California enacted in the last few weeks. I can't remember exactly when it got passed in a law. This is a law that would install a requirement that law enforcement agencies operating in California at all levels publish a policy determining when and how masking can be done for federal law enforcement personnel, allowing for it in certain categories where public safety warranted or the warrant left, safety of people involved, public health situations, occupational safety reasons, certain undercover operations and notes as well. Allowing for certain exceptions then provides a process for legally challenging that policy for its efficiency and compliance with the actual law and the requirements laid out for the law. That's kind of a public challenging administrative process. It sets up and then sets up a provision where law enforcement officers that wear masks in a manner that is not authorized by that sort of policy can face potentially prosecution, but relatively minor one, a misdemeanor or a, I forget the other term they use at California, kind of term of art. But basically very minor legal valuation. But then notably also could face expanded civil liability for torts they commit in the course of that enforcement action. Essentially it says that they can face heightened penalties and also says they can't take advantage of any sort of immunities they may have available to them. Although query whether that one I may agree. I think there's probably some legal issues there on that one, to say the least. Alan, while I'll let you kind of open the chat on this and Anna, please feel free to hop in and distract us, but talk to us why you have doubts as to whether this law will be effective or is constitutional. I should note we've seen prominent law professors, Vikram Amar on the side of saying this is an unconstitutional law, Erwin Chemerinsky on the side of saying this is in fact constitutional inappropriate law. You and I disagree a little bit on that. So I think actually maybe a little less than they do. Talk to us about where you come down on this law.
- [43:14]
Alan Rosenstein
Yeah, I mean, I think this law is pretty obviously unconstitutional. I don't think it's that close of a case. So we're talking here about ice. ICE is part of the executive branch, but it is constituted by an act of Congress. So really what all of this is a question about is what Congress's powers are and so the question is if it is constitutional as an exercise of Congress's power, which is to say it is authorized by some part of Article 1, Section 8, one of the enumerated powers, and it is not otherwise forbidden by a Bill of Rights, something in the Bill of Rights. And to be clear, I mentioned that because I'm very open to the possibility that ICE masking is unconstitutional.
- [43:54]
Unidentified Contributor
Right?
- [43:54]
Alan Rosenstein
Under, like, under federal constitutional law.
- [43:57]
Unidentified Contributor
Right.
- [43:58]
Alan Rosenstein
Like that. We could have that debate. That's interesting, right? Maybe it is, maybe it isn't. But, but I'm not. None of, none of what I say should be said to defend the legality of ICE masking.
- [44:06]
Unidentified Contributor
Right.
- [44:07]
Alan Rosenstein
But that is a question for federal law. And, and so if something is constitutional as a matter of federal law, if it is within the federal government's power, then it is binding on the states and is binding under states under the Supremacy Clause, right?
- [44:19]
Unidentified Contributor
Which.
- [44:19]
Alan Rosenstein
And I don't have embarrassing because I'm a con law professor, so I feel like I should have this all committed to memory or like on a tattoo somewhere.
- [44:25]
Unidentified Contributor
Right.
- [44:26]
Alan Rosenstein
But basically it says that laws, pursuant to the Constitution, right. Are binding and that that where there is a conflict between federal law and state law, federal law wins. And there are two important corollaries to this, because this is a absolute position, right? There is no balance in question. It's not the federal law. If it's really important and it conflicts with a state law, that's not very important. No, no, no. It's just any federal law violates that conflicts with any state law. The federal law always wins. We don't ask any questions. And another part of that is that the lowest form of federal law trumps the highest form of state law.
- [45:00]
Unidentified Contributor
Right?
- [45:00]
Alan Rosenstein
So like if, you know, if, if some bureaucrat in the Department of Dog catching right. In D.C. issues some rule and that rule violates the, you know, cornerstone of the Minnesota Constitution. Well, too bad for the Minnesota Constitution, right? As long as that, you know, dog catching regulation was lawful pursuant to federal law in the federal Constitution, Right. So here it seems to me that this is just not a very complicated case. If ICE is authorized, right, under whatever congressional statute that created ice.
- [45:36]
Unidentified Contributor
Right.
- [45:37]
Alan Rosenstein
And I have not read that statute, but presumably if you read whatever, the DHS modernization act after 9, 11, like there's really something about that there, right? The thing that moved ice, I think, into the Department of Homeland Security, there's probably going to be some broadly worded statute, so broadly worded authorization that's probably similar to other broadly ordered authorizations for other law enforcement agencies that gives that agency the right to, you know, exercise its authorities and set its own procedures to effectuate its mission.
- [46:05]
Unidentified Contributor
Right.
- [46:06]
Alan Rosenstein
As is reasonably appropriate. Again, I have no idea what the loss is, but I assume it's going to be something like that. And I assume that because no one has said anything to the contrary. And if all of this was illegal, what ICE was doing mask wise, presumably someone would have pointed out the provision of federal law that makes that. Makes that illegal. And just to just finish that, I'll shut up. And if that is the case.
- [46:24]
Unidentified Contributor
Right.
- [46:24]
Alan Rosenstein
Then California. Right. Simply cannot, under any circumstances interfere with that, no matter how offensive this is to Californians, no matter how artfully California pleads that California sovereign interest, blah, blah, blah, we have a federal government for a reason.
- [46:40]
Unidentified Contributor
Right.
- [46:40]
Alan Rosenstein
This is the entire purpose.
- [46:42]
Unidentified Contributor
Right.
- [46:43]
Alan Rosenstein
And. And I'm going to get kind of sharp here because I think liberals should know better. This is just state nullification.
- [46:49]
Unidentified Contributor
Right.
- [46:50]
Alan Rosenstein
And once you go down this path, it gets ugly very quickly. And so what annoys me about this is, is not just that this is illegal, but that at least in my view, it's so clearly illegal that this is just posturing on the part of California.
- [47:04]
Unidentified Contributor
Right.
- [47:05]
Alan Rosenstein
And I find posturing upsetting, whether it's posturing from the right or from the left.
- [47:10]
Anna Bauer
Okay. I. But, all right, I go a little bit back and forth on this. I will say I. At first, when I first heard about it, I was like, I don't know if that's legal. And then I started looking into it and especially like following the litigation in aaup, which is a case that we just got some. A decision about today actually, from Judge Young in which he found that the Trump administration illegally targeted people who had expressed pro Palestinian speech. People like Ramesa Oz Turk had targeted those people for deportation. And in the course of this opinion, it, you know, talks about the mask policy. And like, you know, throughout this litigation, it has become clear that there is no mask policy that DHS or that ICE has. Uh, they are permitted to wear masks, apparently, according to Todd Lyons. But, you know, Judge Young specifically says there is no mask policy. In fact, Todd Lyons has said, I'm not necessarily in favor of these masks. And, you know, but they are permitted. Like, you know, Alan, I. Look, I am not up on the Supremacy Clause case law as you guys are, but I do know a little bit about especially Supremacy Clause immunity, because, like Alan, we wrote a piece that touched on that when it came to the Trump litigation and removal issues. And some of that raised Supremacy Clause Immunity issues. My understanding is that the test that has been articulated by the Supreme Court, you know, first, if you're raising supremacy clause immunity, there's the question of whether the action was necessary and proper for federal duty to exercise federal duties. But then more broadly there's this question of like, you know, it's lawful to regulate federal conduct or federal officials insofar as the law does not interfere or substantially interfere. I don't remember the exact language with the duties of the federal officials. I don't understand how this is interfering in any way with the exercise of federal, of federal conduct or of ice, especially because, like, if you look at like the Johnson vs. Maryland case, I think it is, that is about the postal work. Do you guys know what I'm talking about? The postal worker who was prosecuted for not carrying a state license, you know, that was a federal post, federal mail service carrier, wasn't carrying a state license as required by state law, was prosecuted, of course, in that case, Supreme Court said, yeah, you can't require state licenses. But it's like that makes sense to me because if you don't have a state license, in that case, you can't perform your federal duty at all. But here it's like not having a mask. How can you not perform your federal duty? I, I don't understand it. Like, do you see what I'm saying?
- [50:25]
Alan Rosenstein
Like, I, I, I, I do, but I, I just want to, I just want to be clear because I, I don't, I don't want the audience to sort of misunderstand the thing I'm saying. I am not trying to offer an opinion on the merits of whether or not masking is necessary for ICE to carry out their duties or whether or not.
- [50:42]
Anna Bauer
Go to the legal question, though.
- [50:44]
Alan Rosenstein
Yeah, I get it, I got to get it. Or, or whether or not just finished thought or whether or not masking whether or not the federal government should get a lot of discretion as to this question.
- [50:52]
Unidentified Contributor
Right.
- [50:52]
Alan Rosenstein
I think that's actually going to be a harder call than a lot of people, especially on the left, who are not sympathetic to ice. And I understand why give it credit. Right. I think it would not be hard if I were in the government to write the brief explaining why ICE thinks it needs masks and by the way, why judges, you should defer to that. But that's a separate question. If California had sued, right, against the Department of Homeland Security on some, you know, parents patrier theory by which state governments can sometimes sue to vindicate the rights of their citizens.
- [51:22]
Unidentified Contributor
Right?
- [51:23]
Alan Rosenstein
Saying we're Suing on behalf of Californians because the masking itself is illegal.
- [51:29]
Unidentified Contributor
Right.
- [51:29]
Alan Rosenstein
Under federal law. I would be no objections to that lawsuit. I'd be very curious how it. How it.
- [51:35]
Anna Bauer
But that's not the context that the things I'm talking about are raised. Right. Like I'm. Yeah, go ahead, Scott. What are your thoughts?
- [51:43]
Scott R. Anderson
Well, so look, I think you're leaving out half of the legal framework that's really important constitutional framework because you have the Supremacy Clause which says that where the Constitution gives federal authority to the federal government, it is supreme. And then you have the 10th Amendment, which says where the Constitution does not give authority to the federal government, it's reserved for the states and for the people. And so this really gets at the thrust of that question because in the same way that questions of supremacy immunity do as well. And it's a very similar, I think test you would see, which is the idea is that is masking in this sort of context or in the variety of context which might arise, because I think this is a situation where you will not likely to see a facial challenge as much as an as applied challenge in a variety of circumstances actually have enough of a relationship to the federal authority given to the federal government or whether because it is not adequately proximate to that, it is reserved to the authority for the states. And so, you know, it is something like speed limits, right? Can an FBI agent break a speed limit while chasing a suspect of a federal criminal violation? Yeah, probably because he has to do that to enforce a law. Can FBI agent break state speed limits whenever he wants? No, probably not. Because most of the time that's not actually related to his official duties or enforcing federal law. And this law, I think really actually does actually a very smart structural way of dealing with this challenge. Because we've got to remember it's two or three different parts here, right? One is just a disclosure obligation. 1 It says, hey, all agencies operating in California, you need to publish a policy by July 1, 2023. It gives them almost a year to do it. Although notably the legal protections that flow from the policy won't kick in until you publish that policy that is inherently not obstructive to anything of any sort of federal duty in a way I can think of. And usually disclosure obligations aren't something that really are seen as restrictive or interfering on another entity's duties. Maybe there are circumstances where it could be, but it's hard to see how requiring an agency to publish a policy saying here's a circumstance where we're saying you can or can't mask line up is appropriate, then individuals can challenge that policy, the sufficiency of it. Maybe there would be federal constraints on the effectiveness of some of those legal challenges, and state courts would probably acknowledge that, recognize that, and they could bring it to federal court if they thought there was enough of an issue there and they needed to remove it. But it doesn't seem like the actual disclosure is a problem. And then the question of criminal prosecution would again be an as applied circumstance saying, okay, well, you are not actually acting consistent with your agency's publish policy. So actually it's designed to force federal law enforcement personnel who choose to mask in a way in excess of what their agency is arguing as their policy. They're the ones that actually makes specifically liable both on a criminal misdemeanor count and potentially for that heightened civil liability count, which again, I think trying to deprive them of federal immunity, I think that's probably not feasible, although I would have to actually think about. And maybe there are state court immunities that are really targeting with that revocation that would apply. But the key point here is this real question is where does this fall in that spectrum between a federal legal authority and a state legal authority? And masking is one of those things that the federal government's likely to get a lot of deference about what's necessary to enforce the law, but it's not absolute or categorical deference. And the one other thing I would say is that here to get a court to weigh in on a hard constitutional question like this, you usually need to have a clear conflict. You need to set it up in a way that forces them to do it. The federal government maybe will do a lot of things in states in excess, or at least that pushes the limits of its federal legal authority if it's not in violation of state law, because anyone can do that. I can wear a mask on my job if I really want to. Right. But it's not until they can actually pass the state law that they can actually get courts to weigh in on this question and define those outer limits. So as a like, effective piece of legislation intended to force clarity on the legal limits of this and put pressure on the agency, it actually strikes me as like, really cleverly designed. So, like, what, what part of that doesn't ring true to you?
- [56:01]
Alan Rosenstein
No. No. Okay, so look, let me, let me, let me try to synthesize what we're all saying because I, I think we actually all agree, but we're having two different debates and we're going to talk past each other. So let me tell you where I agree with you guys. So it seems very plausible to me that masking as a general matter or as an as applied matter may go beyond the federal authority. To be honest, I'm a lot more skeptical of that than you guys are.
- [56:23]
Unidentified Contributor
Right.
- [56:24]
Alan Rosenstein
I think that the fact that this iteration of ICE is terrible actually doesn't tell us much about whether masking for law enforcement officers can plausibly set to be an important part of their job. It's not necessarily how I would run, you know, a banana stand. But like I think this is going to be a deep loser for people trying to challenge this, this judge in Massachusetts this morning to the contrary. But okay, fine, that's a dangerous.
- [56:45]
Anna Bauer
Wait, wait, but like what, but like you're saying that. But like what, in what plausible universe is it required or necessary or like why would you ever have to mask to perform your duties as a nice official? What this administration.
- [57:03]
Alan Rosenstein
Because masking. Because masking. And again, I'm not, I'm not saying that this, that this, that this is the arguments that I desperately agree with as a policy matter. I think it's very trivial to say that masking probably makes you more effective by making the officers more confident that they're not going to be doxed. I can come up with a bunch of other things.
- [57:18]
Unidentified Contributor
Right.
- [57:18]
Alan Rosenstein
Does that, is that good for a free society? Probably not, but I don't think it's that hard and necessary here.
- [57:24]
Unidentified Contributor
Right.
- [57:25]
Alan Rosenstein
In the Supremacy clause context is interpreted extremely broadly.
- [57:28]
Unidentified Contributor
Right.
- [57:29]
Alan Rosenstein
So I just think under most of those. But that's not the point I'm trying to make. The thing that worries me.
- [57:34]
Unidentified Contributor
Right.
- [57:34]
Alan Rosenstein
Is so with all of that and I think your point, Scott, about. Well, this is really a set of test cases and stuff like that and that's cleaner than Rosenstein's idea about parents patre loss. It's like, okay, that's interesting. That's a cool debate we can have. Fair enough, fair enough, fair enough. I think those people. And again, I don't know Vikram Amar, but I would guess that this is part of what was motivating his I think fairly sharp response to Chemerinsky.
- [57:57]
Unidentified Contributor
Right.
- [57:57]
Alan Rosenstein
Though if you're listening, let me know. I'm very curious. Is that the way this is being discussed in the media and the way this is, I think being discussed by Gavin Newsom.
- [58:08]
Unidentified Contributor
Right.
- [58:09]
Alan Rosenstein
Is I am standing up Right. As a Californian against an overreaching federal government because this violates California values. Fine, fair enough. But this is nullification Right. We have a very bad history in this country about this.
- [58:23]
Unidentified Contributor
Right.
- [58:24]
Alan Rosenstein
And I'm just begging people to think about what happens when the shoe is on the other foot because.
- [58:29]
Unidentified Contributor
Right.
- [58:30]
Alan Rosenstein
Even forget the principle of the thing. Just think about what is in the partisan interests of Democrats or progressives or folks on the left or whenever. When they win the White House.
- [58:38]
Scott R. Anderson
Right.
- [58:39]
Alan Rosenstein
And I know right now, nine months into this administration is very hard to imagine a time in the future when the White House changes. But like it's going to happen.
- [58:46]
Unidentified Contributor
Right.
- [58:47]
Alan Rosenstein
States being able to pass nullificatory statutes.
- [58:51]
Unidentified Contributor
Right.
- [58:51]
Alan Rosenstein
Even as test cases.
- [58:53]
Anna Bauer
But what's it nullify? It's not nullifying anything.
- [58:57]
Alan Rosenstein
So there is an interesting factual question here about whether or not somewhere in ICE there is a memorandum to ICE agents authorizing masks.
- [59:05]
Unidentified Contributor
Right.
- [59:06]
Alan Rosenstein
I would be shocked if such an email does not exist. And if it does not exist, whether it's not going to exist for another week.
- [59:12]
Unidentified Contributor
Right.
- [59:12]
Alan Rosenstein
Now, I grant you, if there's no such email and these are just literally random ICE agents, right. Doing this on their own account or in contravention of ice, of ICE guidelines.
- [59:22]
Unidentified Contributor
Right.
- [59:23]
Alan Rosenstein
Then I am less offended by this California statute. I just find it so implausible to me that this administration, this ice, this Kristi Noem.
- [59:31]
Unidentified Contributor
Right.
- [59:32]
Alan Rosenstein
Is would not be delighted to issue a very quick internal memorandum that is not going to have to go through APA notice and common rulemaking or anything.
- [59:39]
Unidentified Contributor
Right.
- [59:39]
Alan Rosenstein
They can do this, like this afternoon that says mask. If you feel like in your professional. Professional judgment that is valuable.
- [59:46]
Unidentified Contributor
Right.
- [59:46]
Alan Rosenstein
At which point now we have, I think, a real nullification issue.
- [59:50]
Anna Bauer
So just just to be clear, what I was trying to say earlier is that we have testimony on the record from officials that there is no mask policy, but they are permitted to wear masks if they want.
- [60:04]
Alan Rosenstein
Is that a policy? That is the permission written down somewhere? Because that's all you need for a policy.
- [60:09]
Scott R. Anderson
But again, doesn't it strike you as the standard being do it if you want federal agents? Probably going to be not the best argument. If you are trying to make the argument that this is necessary to enforce.
- [60:21]
Alan Rosenstein
Federal law to a court, I can make arguably with. I say we hire ICE agents, we train them, we defer to their professional judgment. If an ICE agent in a moment thinks it is a professional judgment to wear a mask, Right. That is an exercise of federal authority based on the federal training we give them. Federal, federal, federal, federal, by the way, supremacists.
- [60:40]
Scott R. Anderson
Yeah, but I don't think that's persuasive in the same way that you couldn't say, hey, any FBI agent just violates. Just drive as fast as you want anywhere in the state, like, because otherwise the 10th amendment doesn't mean anything.
- [60:53]
Alan Rosenstein
So then it's going to come back. Then it's going to come back to how much deference is. How much difference is the court going to give.
- [60:58]
Scott R. Anderson
I have no doubt they're going to get lots of difference in California recognizes. Right. Like this law has tons of exceptions. Not tons, but like two, two or three really broad ones. Right. But any undercover stuff, public safety, public health, occupational things, stuff like that. Right. Like there's big carve outs. Like actually the number one thing it's trying to do, which I think is interesting, is to pin the agencies down on having to publicly promulgate a policy and then forcing agents to comply with it. And that actually, again, like, that doesn't strike me as fundamentally that if that's.
- [61:28]
Alan Rosenstein
All this boils down to, if that's what this ends up boiling down to, I will cool my jets.
- [61:35]
Scott R. Anderson
I like not. I think that's.
- [61:36]
Alan Rosenstein
I think Kuja will go back into his cage.
- [61:40]
Scott R. Anderson
You know, I don't think I'll net. I think the rhetoric around this law is like, kind of spun out in a lot of different directions, which is not surprising. Look, it's a politically motivated law. Like, that's really true. Most, most laws are to some extent or another.
- [61:52]
Alan Rosenstein
I'm just channeling my antipathy toward Gavin Newsom's political rhetorical style. This may be firing my judgment on this one, but I think that's. That's important in this very testy democratic environment, small D democratic environment, where norms are getting shredded left and right. And I'm just getting uncomfortable.
- [62:10]
Scott R. Anderson
I don't disagree, but I also think there's a lot of merit in this moment, setting aside state nullification and the problems it's had in the past. Also really good reasons to say we also need to test the limits of the federal authority. This is a good moment to do that, particularly when they're doing it in ways that aren't, that don't necessarily correlate to the laws Congress has enacted. So. Or at least not as clearly as maybe it needs to. So anyway, that's. That's where I come down.
- [62:35]
Alan Rosenstein
We have another conversation under the AOC administration. Scott.
- [62:38]
Scott R. Anderson
There we go. We'll see. We'll see. I'm sure I'll feel the other way on the other side.
- [62:40]
Alan Rosenstein
I'm sure you will.
- [62:42]
Scott R. Anderson
The. Let's go to our third topic. That always brings us back to the state of California. We had another really interesting law enacted just in the last 72 hours, I think, or signed in the last 72 hours, I should say, by none other than the aforementioned Gavin Newsom. And this is a new AI safety law. We talked about California's very controversial AI safety law on this podcast. I think a year, year and a half ago when it got vetoed by Governor Newsom, this was Law SB 1000 something. I can't remember that number. 1047. Thank you. That would have done a number of things that people were worried were going to deter the ability to develop AI companies that was going to chill and constrain AI companies from developing forward leaning models, a lot of which was focused around like liability and concern for catastrophic risk, assessments of catastrophic risk. This new law does have some of that in there, but it focuses a lot more on disclosure and public articulation, requiring articulation of plans by the AI companies. Alan, you follow this stuff closely. Talked about what this law does and why and why this law. Whereas the last one faced strong opposition from the AI industry, this one mostly met with silence and in the case of anthropic action, endorsement.
- [63:53]
Alan Rosenstein
Yeah, yeah. So if you don't mind, I'm just gonna, I'm gonna log roll for just a second. So we have, as folks may know who listen to the lawfare cinematic universe of podcasts, there's a new podcast, relatively new, called Scaling Laws, which I, Kevin Fraser, another senior law FIR editor, and I are running now. We, Kevin and I this morning did a rapid response recording, or this morning being yesterday morning for those of you listening, a rapid response on Governor Newsom. Who get who, Kevin accidentally, but I think hilariously called Gavinor. Oh, no, no, yeah, yeah, the Gavinator, which called him the Gavinator.
- [64:25]
Scott R. Anderson
Now that's not an accident. That's a strange.
- [64:27]
Alan Rosenstein
By the time you're listening to this, if you want 40 minute deep dive with some very bad jokes on SB53, which is this new law, you can listen to that wherever you get your podcast, just search for scaling laws. So SB53 does three things. It kind of reverse order of, I think salience in the political environment right now. One thing that it actually does that is the least important in the near term, but I think is going to be really cool in a year, is it sets up a task force to recommend what they're calling Cal Compute, which would be a public basically cloud computing cluster that California would run, which I think is like nothing that's going to happen anytime soon. And given how the fast rail in California is going, who knows if it'll ever happen, but it is a cool idea and props to them for thinking about creating sort of a public option for computation, which is like really important. As AI becomes more and more important, the second thing it does is it increases protections for whistleblowers in the big AI companies so that they are worried that the AI is going to do something bad or is going to go all Skynet. If they report that to the Attorney General of California, a federal agency, or within the company itself, they can't be retaliated against. And that's actually, I think, meaningfully important. And then the third thing, and this is the thing everyone's talking about, are these transparency requirements. So basically if you are a frontier lab, which is to say you are making the most advanced models and you're a big company, so you're making like half a billion dollars in revenue a year, which amazingly is not that large of amount in this space. It's a lot for me, but it's not that much in this space. Then you have these, I wouldn't call them onerous requirements, but you have non trivial disclosure requirements. You have to report to the state government about any catastrophic risks or which is then defined as like $50 million or the death of five or more people, which is like, that would be a big deal if I caused that. And I think that's not super controversial. And the other thing you have to do, I think this is where there's going to be some controversy. Even though, Scott, you were right. The AI companies either supported it like anthropic, which has always been safety conscious, or they've kind of just shut up about it because they probably wanted to give Scott Weiner, who's the main California state legislator, like a win on this and just like get them to stop bothering them for, you know, a year though we'll see if this satisfies him or just makes it more excited. They have to publicize on their websites their safety plans. Now what's interesting, if you read the law closely, it doesn't say that they have to have safety plans. It's that they have to publicize the extent of their safety plans. And specifically they have to like answer a bunch of questions like what is your safety plan? How would you respond to this threat? How would you respond to that threat? What third party evaluators have you used? How do you fit into federal, international and industry best practices? Now the answer, as far as I can read, the statute can be like fu to all of those things, but you have to publicize them.
- [67:11]
Unidentified Contributor
Right.
- [67:12]
Alan Rosenstein
And so the assumption, I guess, and I think it's not a bad assumption, is that even Xai Elon's company that makes Grok is going to be vaguely embarrassed to publish on their website. We don't do any of this stuff. And so it's a kind of forcing function. It's clever, right? I mean, it's funny because it's a little bit, I mean, it's a little bit like the previous segment of forcing these entities, whether ICE or our other sovereigns, the AI companies, to be transparent about what they're doing. And so I think, because it's not that onerous at the end of the day, that's why it hasn't had too much pushback. Now I do think, and I know folks in this area, and so there are some interesting group chats happening right now about whether this actually might raise some constitutional questions. Because there is an important First Amendment case from the 1980s called Zerer which sets out when the government can compel commercial entities to publish commercial information. And the general rule is the government can do it if it's relevant to the government interest, which here I think it certainly is. It's not too burdensome, which almost by definition nothing is if you know you're like $100 billion AI company and then finally, and most importantly, if the information is purely factual and uncontroversial.
- [68:25]
Unidentified Contributor
Right.
- [68:26]
Alan Rosenstein
So the way that works is like, you know, when food companies have to put ingredient labels, they can do that because they can be forced to because of Zowderer. But that line is not, There's a line there. So there's like a famous case where a crisis pregnancy center, which are these sort of kind of right wing places I want to be, I want to be careful how I describe them, but they're basically they, they offer reproductive counseling very much without abortion as part of the counseling list.
- [68:52]
Unidentified Contributor
Right.
- [68:53]
Alan Rosenstein
When they were required to provide information about abortion, a court struck that down as going beyond purely factual and uncontroversial. I assume the uncontroversial part was doing a lot of work there. And look, you could make, I think, a compelling argument. I don't know if it would win.
- [69:08]
Unidentified Contributor
Right.
- [69:09]
Alan Rosenstein
I need to read all the cases that. Look, making an AI company talk about the chance that their model is going to gain sentience and turn into Skynet and cause human extinction, that's pretty speculative. Are we doing factual? Are we doing uncontroversial here? Maybe a court would be fine with that.
- [69:28]
Unidentified Contributor
Right.
- [69:28]
Alan Rosenstein
It seems totally plausible either way. But I don't think this is the last we've heard of this law. And then there's always this question about should states be in the business of regulating what are fundamentally national questions? AI model safety. Look, it's true that Silicon Valley's in California, so California has subject matter jurisdiction over this. But this is not a California, California issue. This is a national, international issue. So there's kind of a policy question. If you listen, if, you know, if you listen to the scaling laws thing, Kevin has a dormant commerce clause argument that is interesting as well. But just as a policy question, should this be done at the state level? I don't know. It's an interesting question. I suspect that this is one of these interesting laws where it does relatively little, which is why it's okay if it did more and was more effective, it would probably actually raise more of those policy issues. But at the end of the day, I'll give it a B. And this is a real B, not a grade inflated B. If only for starting the legislative process going because we can squint at every piece of legislation, but for a technology that I think, and people can laugh at me, but I think is going to go down in history as important as the printing press, if not fire. This cannot all be self regulated.
- [70:35]
Scott R. Anderson
Yes, I think that's fair to say. Although Fire was self regulated.
- [70:38]
Anna Bauer
I was wondering if fire is a real.
- [70:42]
Scott R. Anderson
I don't know, AI departments with buckets in every major city ready to run in and douse any sort of problematic AI that make out of hand. I think this law is really interesting because one thing it brings to bear is something that I feel like the AI industry, particularly the big actor, actually even the small actors have been kind of immune to so far, at least for me as somebody who is, you know, who is.
- [71:08]
Alan Rosenstein
We've won you over you a year ago about being completely like AI. So lame and like guys, audience. The amount of slacks and messages I get unprompted from Scott Anderson about like the cool new AI toy he's discovered. He's as AI pilled as anyone else. Don't, don't let him fool you.
- [71:23]
Scott R. Anderson
And I've become, I've become like a consumer, right? And I think like a relatively informed consumer. Like I'm like looking at different models looking at different like services, tools. They're interesting.
- [71:30]
Alan Rosenstein
Multiple AI girlfriends.
- [71:31]
Scott R. Anderson
They're multiple AI girlfriends. They all are kind of like magic. Like I understand how they work, but I like, I understand on a conceptual.
- [71:40]
Alan Rosenstein
Level, but is there Anderson AI is.
- [71:42]
Scott R. Anderson
Kind of magic, but they're, but they're black boxes, right? Like I don't know what the input goes in and out. And there are other technologies that operate a lot like this. Like even though I'm a fairly tech savvy person and like I'm the type person who likes to know how things work, so I spend a lot of time like Wikipedia, like figuring out how my toaster oven heats things up and stuff like that.
- [72:00]
Alan Rosenstein
Are you the family tech support guy?
- [72:02]
Scott R. Anderson
I'm very much the family tech support guy. Me and my brother, we like trade off. We're both kind of the same way, but we're both like people who really bothers us. We don't understand, at least on a rudimentary level how things work. Like it's so hard to understand and compare these different models and tools. And a big part of that is because they are complex and a big part of it is because the companies keep a lot of it close hold, right? Like and especially when you're talking about like you know, you have the open source models. But this is very different than that obviously.
- [72:30]
Alan Rosenstein
And no one knows how the open source models work either.
- [72:33]
Scott R. Anderson
No, that is genuine magic to some extent. But, but it's, it is, this is at least a real first step towards two things. One, consumer safety. Like this gets information out there so that you know, consumer groups, consumer advocates, consumer advisors more than anyone can start saying like, oh, here's the different things to weigh in on these different tools and how to think about it at least in important dimensions. And that can bear on consumer social responsibility choices. It can bear on their worries about risk in themselves, concerns themselves and then it brings the bear market forces on that which is the thing these companies are going to respond to because they are all competing with each other for market share. Right now it seems like market share is just like growing exponentially. And it is and may well for a while though who knows if the AI bubble bursts for a little while. But like they are still competing with each other and that market share pressure is going to matter and it may not particularly matter as they like what I suspect is going to happen with AI industry where we are moving to a stage where the marginal advantages to be gained by further AI development are substantial. But the real thing that's behind is actually learning to implement the AI we have and spreading it out both domestically and internationally. And as you do that, you're going to have a ton of new markets open who are not high end, super sophisticated consumer Markets who are going to need and want guidance on which of these to buy. And that's where these market pressures are really going to come into play. So I actually think this is kind of like clever and also, also I should know. It is actually written by Wiener. Both this law and the masking law are both written by Wiener. So it's not a coincidence.
- [74:03]
Alan Rosenstein
Is the masking law Wiener special? We got to get this. We got to get the guy in the pod. He's interested. He's just like, he's a busy guy. Do we think he just listens to a lot? Do you think that's what's happening? Maybe listens to a lot of content?
- [74:14]
Scott R. Anderson
That'd be the dream. The dream.
- [74:16]
Alan Rosenstein
Come hang out with us.
- [74:17]
Scott R. Anderson
It is, it is. I think it's really interesting. Clever. And this transparency model seems like low hanging fruit that like maybe you could get a lot more people on board with. Companies are always going to fight it like they hate transparency. Every regulated agency, they always complain about the disclosure requirements and they can get onerous but start asking that much of huge companies of whom they're really only like you know, eight or ten that we're talking about that hit these thresholds. So I don't know, I think when.
- [74:43]
Alan Rosenstein
You'Re richer than God, just. Just hire another intern to do your show.
- [74:46]
Scott R. Anderson
There you go. Exactly. Well folks, that brings us to the end of our time together this week. But this would not be rational security if we don't not leave you with some object lessons to ponder over in the week to come. Alan, what do you have for us this week?
- [74:58]
Alan Rosenstein
Okay, so in continue the AI theme. My object lesson is an AI product. So I am a very hobbyer coder. Hobbyist is doing most of the work here. I'm very bad at it, but like it satisfies. I really liked video games when I was a kid and I don't know, I'm a grown ass man and it's like feels like I feel guilty. I play video games, but it's the coding stupid little stuff like totally satisfies that itch. But I'm not very good at it. And a lot of coding is actually kind of the boring parts of remembering the API. And what is this variable called? What is that variable called? And so vibe coding, which is using agentic AI systems to help with that can be really fun. I think in Silicon Valley it's actually useful. But for people like me who just do this for fun, it's just like it lowers the barrier to entry to go from idea to something fun. And you can still learn a lot if you use it correctly. And so there have been a lot of these tools and I played with a bunch of them over time. But Anthropic, the maker of Claude, released its latest model, 4.5 Sonnet, or Sonnet 4.5, I think, yesterday, sorry, earlier this week, Monday. And they claim, and it seems right, based on early reports, that it is the best coding model. And they released some upgrades to their CLAUDE code command line interface agentic system and their VS code plugin. And so I've just been playing around with it. I made the most dorky thing imaginable, which was a 529 college savings account calculator for my two children. Like with graphs and everything, which is if, you know, you know, Scott gets it, you know, we have, we've seen the graphs. God, the cost of college in 2043. It's bad. And it's really fun. Like, it's just been so much fun. It's actually useful. It's the first project I've made that's like actually useful. It's really satisfying and you can learn a lot, actually, because what you can do is instead of like reading documentation and making mistakes and getting frustrated, you can just have it make something and then explain it to you line by line, what it's made, which is actually not just useful, but actually makes you learn something. So it's just kind of a fun hobby. I think there, there's a lot of people who are kind of technically minded and like to think in this kind of Lego like way, but just, you know, didn't spend the thousand hours learning the basics because, you know, we had other stuff to do. We were going to law school and this is really fun for people like that. So I recommend you try it. It's really fun to do. I've had a lot of luck with Sonnet 4.5, but there are a million of these and there's a leapfrog every three weeks with the next model. So go to YouTube, type vibe coding and just get into it. It's really, really fun. I recommend it.
- [77:25]
Scott R. Anderson
Yeah, I will admit I have been playing around with a little bit of Vibe coding myself and I have enjoyed it and it actually you can make like very functional, useful things. I was going to endorse another, my favorite AI tool in Alan's honor as he's on the podcast. And that is NoteBookLM from the kind of Google suite of AI tools, which I'll get to in a second, but it is amazing. And does insane things. But the thing I ended up vibe coding very easily, like shockingly easily was something that. And you'll appreciate that Santa goes to Courtlistener and Downloads all the PDFs from a whole docket and puts it in one folder so that I can then drop it in NotebookLM and all of a sudden do sophisticated queries, do very, very long factual records for litigation. It's really useful. It took me a minute to develop one of these folders.
- [78:05]
Alan Rosenstein
Does it scrape the website or does it use the API? Does Chrono Listener have an API that you can.
- [78:10]
Scott R. Anderson
It just scrapes the website. Right now I probably have an API.
- [78:13]
Anna Bauer
I'm gonna need you to teach me how to do this.
- [78:14]
Scott R. Anderson
It is really cool. I was gonna offer, I chatted you earlier a message saying I gotta tell you about NotebookLM. This is what I was gonna tell you. NotebookLM people haven't encountered this. If you're particularly like an academic or somebody who does like a lot of long form writing or like does a lot of research or repeated writing in like an area, it's, it is the most useful tool I've seen. Deep research is really cool. I use that. I tend to use like the Google Gemini AI toolkit does really cool stuff. Comes with good papers that like are as good as like you're going to get from a good ra and they come back very quickly but they're not perfect. And like, particularly when you're in a very like kind of technical field that has kind of very like idiosyncratic ways to think about knowledge like the legal field is. I think sometimes most AI tools don't do a good job tackling that unless you're really, really careful about defining parameters, giving it instructions, context. Things like that notebook is different. Instead of going to search the whole Internet, you give it the sources. So you upload a bunch of documents and then it does the deepest, most intense reading and organization of the data on those documents you have ever seen. So my test case for this is I wrote a law review article on war powers issues. A year ago I had 93 sources downloaded as PDFs that I just took and uploaded Notebook LLM because a pretty good lit review of like, you know, primary sources and secondary sources about war powers the last 100 years. And it spit out a 15 minute summary video, a series of lessons if I wanted to use it to learn this stuff, although I already knew most of it. And then this knowledge map which was like the most detailed outline that drilled down into super like over. I counted over 140 different specific, lowest level issue topics, each of which got its own, like 500 to 1000 word essay with footnotes linking back to where it was, pulling all the information together. Like truly insane stuff. Stuff I think it'd be incredibly useful for like, factual records. I'm writing a very long law review article on like, historical recognition practice right now, so I'm just uploading all these PDFs into this thing. It's great. So highly recommend it. I think it's the most impressive thing I've seen in the AI world so far. I probably should spend more time with other tools. I'll be more impressed. But it's really, really phenomenal the stuff it can come up with. And it's just wild.
- [80:15]
Alan Rosenstein
What people don't realize is that we actually replaced Scott with an AI voice model and video model months ago.
- [80:21]
Scott R. Anderson
And that's why I talk so fast.
- [80:24]
Alan Rosenstein
The quality has increased. Just, just the whining has decreased. It's really, it's been a win, win for everybody. We, we keep, we keep Scott locked away now for, for, for public appearances.
- [80:33]
Scott R. Anderson
Anna, what do you have for this week? It was not an AI tool. We're going to be disappointed.
- [80:37]
Anna Bauer
If you know me, you know that it absolutely is not going to be an AI tool because I don't even know how to work like Excel and Google Docs. So. Although I will say I just checked and I have confirmed that Senator Scott Weiner, State Senator of California, as I understand it, follows Ben and me on Blue Sky. I have not been able to look through sufficiently to find out if he follows either of you, but this suggests that he may very well. He may very well be a lawfare listener. So, Scott Wiener, if you're listening, come join us someday.
- [81:17]
Alan Rosenstein
Ignore all the mean things I said about your law.
- [81:23]
Anna Bauer
All right, so object lessons. All right, look, I wouldn't. This would not be a millennial nostalgia nostalgia podcast if I did not do the most millennial woman thing and, and mention that Taylor Swift does have an album coming out this Friday, October 3rd, which happens to also be Mean Girls Day, if you know the reference.
- [81:47]
Alan Rosenstein
Did not.
- [81:48]
Scott R. Anderson
Did not.
- [81:51]
Alan Rosenstein
I don't know why that date is Mean Girls Day, but I definitely know the Mean Girls reference. One of the best movies of all time. I know the movie. I'm not trying to know the date.
- [81:58]
Anna Bauer
It's October 3rd. Yeah, okay. Yeah. Anyway, no, you don't know. You don't know that scene. You do.
- [82:05]
Alan Rosenstein
I need to look it up. No, no, I know the movie. I need to look it up.
- [82:07]
Anna Bauer
You guys need to rewatch.
- [82:08]
Scott R. Anderson
It's Been a While. It's Been a While.
- [82:10]
Alan Rosenstein
What I need to do is re watch it.
- [82:11]
Scott R. Anderson
Yeah.
- [82:11]
Anna Bauer
You'll also understand when inevitably on October 3rd, you see a million memes about it being October 3rd with reference to this specific scene from Mean Girls. Anyway, my actual object lesson is, as you all know, I recently moved to New York City and I feel a little bit like I'm like doing all of the tourist things that like, I've never done in New York City, like going to shows and like, all of that. And one of the things that I recently decided to start doing is go to a bunch of comedy clubs because in part because after the whole Jimmy Kimmel FCC jawboning fiasco, I made a joke about how I was gonna volunteer for journalistic purposes to go to all the New York comedy clubs and see who had the best Jimmy Kimmel joke. So although that was a joke, I kind of followed through on it in that, like, in a single week. I went to like three different comedy clubs.
- [83:19]
Scott R. Anderson
I love it.
- [83:20]
Anna Bauer
To see if anyone was making Jimmy Kimmel jokes as like a kind of experiment. And then I went on Ben's Substack Show Dog Shirt daily to talk about it this morning. So check that out if you want to hear a conversation about it. But I had the most fun going to these comedy clubs. No one made Jimmy Kimmel jokes naturally. There was one point when someone made Jimmy Kimmel jokes in response to asking me why I was there. And the guy speaking of AI, I guess this does have an AI element to it. The guy who's the emcee then left and came back like 15 minutes later with a bunch of Jimmy Kimmel jokes that chat GPT had come up with and that were not particularly funny. But I, I like did not know that, like, because I'm a comedy fan. Like, I watch all the specials. I like, you know, love consuming comedy on tv, But I have not been someone who ever thought that I would particularly enjoy, like, actually going and seeing a stand up set in person. But it was really fun. So I highly recommend, if you need a laugh, especially in these dark times, just go check out a live comedy club showing. And also let me know if you hear any good Jimmy Kimmel jokes, because it seems like nobody's making them. And I don't really know why, because I think is the answer. Yeah, maybe that's why really quickly, because I know we have to go. I will say it sounded like one of the reasons that they weren't Making Jimmy Kimmel jokes is because they just don't necessarily think Jimmy Kimmel is all that great. Like, the chatgpt jokes that this guy came up with were all about, like, one of them was something to the effect of ABC firing Jimmy Kimmel is like if Disney fired Mickey, if Mickey had been coasting for seven years.
- [85:23]
Scott R. Anderson
There you go. That's something. I think that's. I think that captures the sort of.
- [85:27]
Alan Rosenstein
It's fine because he's bad back now we can.
- [85:28]
Scott R. Anderson
There you go. Exactly.
- [85:29]
Anna Bauer
Yeah, he's back.
- [85:30]
Scott R. Anderson
I used to go. I lived in New York. I would go to comedy clubs occasionally. I got to see, like, Jenny Slate when she did an awesome, like, improv standup show before she was on snl. Even like, way, way back when. This back when.
- [85:41]
Alan Rosenstein
Did you ever get roasted, Scott? Because I could imagine like a 12 foot redheaded gentleman. It's just, I feel like prime.
- [85:48]
Scott R. Anderson
Yeah. Every day. Every. Every day of my life.
- [85:50]
Alan Rosenstein
Every day.
- [85:51]
Scott R. Anderson
I don't need to go subscribe to just your life. Yeah. I will say the sad. One of my saddest things that I almost got to do as part of this job that fell apart, I think during the pandemic or when the pandemic started. I was supposed to give a talk at the Comedy Cellar because they used to do, like, people come and like, talk about, like, I was serious.
- [86:07]
Alan Rosenstein
I was invited to do one of those as well. And it also fell through.
- [86:10]
Scott R. Anderson
Yeah, yeah. Good, good. We'll do a rat sec recording, guys. Let us know what.
- [86:14]
Alan Rosenstein
God. We will do that at the com.
- [86:16]
Anna Bauer
Has invited the guy who owns the comedy seller to come on dog Shirt Daily.
- [86:21]
Scott R. Anderson
And we're not gonna help anything.
- [86:23]
Anna Bauer
Well, well, it's.
- [86:25]
Scott R. Anderson
They're in comedy and entertainment.
- [86:28]
Anna Bauer
Well, what I'm saying is that we were going to ask him when he came on Dog Shirt if he comes on dog Shirt daily, why a. Why there are no Jimmy Kimmel jokes. And then also be like, various other things. So maybe we could ask him, why did he cancel your dog?
- [86:45]
Scott R. Anderson
There you go. There you go. Exactly. And I did not make the cut, sadly. Well, with that goal in mind, keeping in tune, hoping to do a rat sack live show somewhere in a comedy center or maybe some other comedy club in New York. I don't know. Let us know. We should do. We should do some live shows sometime. Until then, though, 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 us@lawfaremedia.org for our show page with links to past episodes for our written work and the written work of other Lawfare contributors, and for information on lawfair's other phenomenal podcast series. While you're at it, be sure to follow Lawfare on social media or view 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 and other special benefits. For more information, visit lawfaremedia.org support our audio engineer and producer this week was Noam Osband of Go Rodeo and our music, as always, was performed by Sophia Yen and we are once again edited by the wonderful Jen Bacha. On behalf of my guests Anna and Allen, I am Scott R. Andersen and we will talk to you next week. Until then, goodbye.
- [87:55]
Warby Parker Advertiser
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