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E
I want you to know that we are doing this in video and I am under duress.
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A
You do look a little bit like you're under duress, but that's why we do it in video, so I can tell how genuine your objections and emotions are. I'm not gonna lie. I don't love being on video either. But, you know, the people demand it. The hordes. And we give the people what they want. But why? What is your objection?
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E
I just. I make so many faces while people are talking, and I want people to think that I'm respectful when actually I'm making extremely skeptical looks.
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A
See, this is where you and I are different, because I am happy for people to see my faces. I want people to see when I don't react because then it becomes painfully obvious I'm not listening and trying to prepare for the next segment.
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E
Occasionally, I gotta tell you, when it's audio only, it also is pretty obvious when you're listening.
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A
Fair enough. The stammering, the immediate transition to a topic no one was talking about. I have a certain special set of skills that I deploy on this podcast.
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E
I guess the thing is, I can make use of a skill that my son recently learned and deploys occasionally correctly, which is the air quotes.
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A
Ooh, that's good.
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F
My object in the video is that I cannot stop looking at my own face when I am talking. And then I am far too focused on my own facial expressions and not focused nearly enough on the substance of what I am saying.
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A
That is a genuine Problem. My very first or second, maybe my second television appearance when I started this job was back, like, in the actual studio where they would pull you on, for some reason, this news network, I will not name who they are, would put a monitor of your own face right below the camera so you could see what you look like. And it was terrible because all I could do is kept nervously moving my eyes up and down so it looked like I was watching a tiny vertical tennis game of some sort. It was not a very effective or credible look. I will say. I asked them to turn it off the next time I came in, and that was my policy from now on is just like, just turn it off. I don't need to know what I look like. I think it's fine. It's all for the better.
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F
I'll try to just look at Natalie's judgmental faces. Focus on that instead.
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G
There is a New Yorker cartoon, maybe, I don't know, 15, 20 years ago, where one person says to another in front of a computer, I love watching amateur porn because I enjoy seeing other people's apartments, and that's how I feel about video podcast.
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A
There was that era where we were all very excited to see other people's very stylish apartments. And occasionally I would particularly see, like, law professor friends of mine who live in college towns where I think a law professor salary, like, goes very far. And then this beautiful statuesque backgrounds that may have been fake. I can't. You can't always tell. Some people had really, really good, you know, virtual backgrounds during the pandemic, but there's a certain joy in that.
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F
Yeah, there was Room Raider on Twitter for a while, but they were kind of harsh. They were kind of mean. Like, they would dock people for absurd things. Like, you have infinite jest on your shelf. Like, you're pretentious. Minus three.
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A
I think Ben actually got accused of looking like an actual Iran hostage from the embassy season during his. Because he's like a plain T shirt against the white wall, which was not fair, but also was shockingly accurate. Like, if you put it. If you put it in black and white, you're like, yeah, Ben, you do have kind of a 70s pull out of bed in the middle of the night sort of vibe. That's not great. It's not great, but it's part of our aesthetic here at Lafayette. What are you gonna do? Hello, everyone, and welcome back to Rational Security, the show where we invite you to join members of the lawfare team as we try to make sense of the week's Biggest national security news stories. I am your host, Scott R. Andersen. I would never say that in the beginning. Here I should introduce myself. People don't know who I am. It's not self evident. I'm Scott R. Andersen. Great to meet you. Thank you for coming on the podcast and I'm thrilled to have some of my Lawfare colleagues here with me today. Joining us again on the podcast for the first time in a little while. Thrilled to have her back is of course Lawfare's executive editor, Natalie Orpen. Natalie, thank you for coming back on the podcast.
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E
Thank you for having me.
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A
And also joining us are two of our newer faces here at lawfare, but at this point, seasoned veterans of the rational security scene. We of course have lawfare senior editor Molly Roberts. Molly, thank you for coming back on the podcast.
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F
Thank you.
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A
And Eric Columbus, our other most recent senior editor edition. Eric, thank you for coming back on the podcast.
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G
Great to be here again.
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A
Wonderful. We have a lot of news happening in the national security space. There's a lot of international stuff. We talked about a lot of that last week. We'll circle back into it probably next week. Stuff happening on the tech fronts. But today we're going to zoom into that facet of the Lawfare universe that we spend a lot of time on. That is the justice system, US institutions, the domestic side of national security and a lot of the issues we care about here because a lot has been happening on this front and there's a lot of things to dig into. So our first topic today, I don't think you're ready for the shutdown little K pop demon hunters reference. I don't know if Molly or Eric, if you guys have had this suffused in your life. Natalie, I'm confident you do because you have a child about to same age as my son. I can't get away from these stupid songs. But it's the first time I wake.
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E
Up in the middle of the night with them in my head and it is very distressing.
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A
Absolutely. They're very hooky. I also found today an album where somebody that randomly came up on my Spotify once with my kids this morning that remixes all the songs to make them about the Minecraft movie in a very weird bit of viral marketing aimed specifically at 7 year olds. So you know, just throw that out there. But regardless, that is not our topic for today. I don't think you're ready for the shutdown. The record setting shutdown of the US government is set to come to an end today. The day we're recording this Wednesday, November 12, I think in a vote later this afternoon, after eight Democratic senators agreed to a plan that will fund all the government through January 30, certain chunks of the government all the way to the end of the fiscal year September 30, and made a number of concessions along the way, some to issues Democrats care about, a handful to issues that Republicans care about, but nonetheless got the slimmest margins of votes to get through the Senate. And that deal is on track to be approved by the House later today, bringing the shutdown down to an end, at least for a couple of months. What should we make of this deal and what are the political ramifications, particularly for Democrats, many of whom are quite angry at the crew of eight, technically only seven Democrats, one independent that ultimately went along with this plan? Topic 2 overtax last week, in a move quite publicly celebrated by his controversial clemencies are Ed Martin, President Trump issued pardons for dozens of individuals accused of participating in efforts to manipulate the result of the 2020 elections in his favor, including his former attorney Rudy Giuliani and the other alleged, quote, unquote, unindicted co conspirators in his own since abandoned federal criminal prosecution. Indeed, Trump himself was actually the only one who had been federally indicted for 2020 election manipulations, as far as I can recall, making the most immediate legal effect of just about all these pardons a little bit unclear. But what is it exactly Trump is trying to accomplish in issuing them, and what could the ramifications be for future elections? And topic three, Law and Order Special Victims Unit Even as his prosecutions against James Comey and Letitia James have faced headwinds, as have investigations into other perceived enemies like Adam Schiff. The Trump administration appears to be moving full speed ahead with a different sort of criminal investigation into other perceived Trump enemies, most notably a large scale investigation into government reports alleging Russian support for Trump in 2016 that was recently transferred from the Justice Department officials in eastern Pennsylvania to the much more Trump friendly terrain of southern Florida. What is the current state of the revenge campaign the Trump administration has been pursuing and where does it seem set to lead? So our first topic, I want to turn to you first on Eric, to kind of bring us up to speed a little bit. Let me try and lay out, as I understand the deal, we've got seven Democratic senators, plus Angus King, an independent who caucuses with the Democrats who ultimately join a deal to reopen the government. The basic contours of the deal. As I understand it, the biggest chunks of it are most of the government. All the government, I should say, is going to get funded through January 30th. So that means that we get a couple of months reprieve before we go through this whole exercise more or less. Again, certain big important parts of the government, SNAP benefits, Department of Veteran Affairs, Congress itself and congressional staff is going to get funded all the way through September 30th. So there will be at least big parts of the government will not be shut down in the future budget debate that may come about after January 30th. There is a agreement that appeared to be a key concession to this group of eight Democrats, particularly Senator Tim, who's kind of the last one to give the last vote they needed. He's a Virginia senator who is given his state, very concerned about layoffs and treatment of federal employees. The deal essentially says we're going to bring back all the people who were riffed during the shutdown and then importantly put a moratorium on rifts until January 30th. So the near shutdown up until then. So a few months stay from major rifts. I need to look at the legislative language, remind myself exactly how they define that category. But, you know, it's a certainly the understanding of the bargain is that we're not going to see any major driven rifts by the Trump administration during this period, rifts being measures to fire swaths of federal employees. And then there's a couple other oddballs in there, including a provision that may be poised to allow certain senators to sue over efforts to surveil them that have become to light recently and particularly become more controversial recently. So, Eric, talk to us about what you make of this deal. Are there parts of it? I'm leaving out a big chunks of it that aren't in that sort of summary, how you think we got here and what tells us about the use of the shutdown as a political tactic, which kind of Democrats certainly leaned into this time more than they did the last time this debate was on the floor, and they ultimately decided not to. And the controversy we're seeing around this, I mean, we are seeing people calling for Senate Minority Leader Chuck Schumer's resignation, even though, frankly, he opposed this deal, he appeared to be involved in it. You have a lot of ire being directed at these eight senators, notably none of whom are up for election in this next cycle. So talk to us about what this us about the dynamics around shutdowns and their use of the tactic of this sort of environment.
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G
Glad to do that. So the Backstory here is that in March, there was a similar kind of budget cliff. And at that point, the Senate Democrats caved, and Chuck Schumer was basically raked over the coals for doing that. And there was a feeling that the Senate Democrats would be more likely to stand tall this time around. And they did for a while, for, I guess, however many 42 days. And there was. There was the feeling that they were doing this because they felt they had to in order to appease the base, and that it might cause a. A short term political loss for them, at least in polling that, as it turned out, did not happen. Polls showed that voters kind of blamed everyone, but they kind of blamed Trump a little bit more. And that, I think, is because Trump looms so large over everything that he becomes the face of the United States government and gets blamed when things go wrong. And he was kind of running around being very loudly proclaiming the things that he was trying to do and the ways in which he was almost gleefully inflicting pain on folks by kind of rejoicing in not extending health care subsidies, by trying to deny food stamp benefits, and having somewhat aggressive litigation posture in that regard. And I think that one other thing that Trump was doing that was very notable was urging Republicans to kill the filibuster, which is one of his favorite topics and something that he so far has not gotten anywhere with, with some very small exceptions. And I think that for the senators who eventually decide to strike a deal, there may have been a fear that Trump would actually succeed and that Senate Republicans would, at least for appropriations, nuke the filibuster and establish a precedent that you could pass with 51 votes, or in this case, 50 plus the vice president pass appropriations legislation. And I think a lot of Democrat senators, including the ones who voted for the deal, didn't like that idea and felt that either it was just kind of substantively bad for the nation to make appropriations a strictly partisan affair, or that it would reduce the power of individual senators because it would negate their ability to make deals and reach across the aisle. And, of course, to the extent they felt that way, that may have been more in the back of their mind or subconscious, but it's something that I think they may have felt was not good for the functioning of the Senate.
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A
Yeah, it's a really interesting dynamic that I think we see in play here, where there's, like, this institutional role of the Senate traditionally has always been really, since the framing, an idea of, like, the cooler heads prevail wing. Right. You have the House that's kind of full of hotheads. There's people who are viewed by the framers, at least as representing the broadest popular democracy, and that there's always idea of mercurialism there. And they have shorter term political horizons, more realistic, basically every two years. Senators, because they're a little removed, they represent broader constituency. They originally were elected by state legislatures, meaning there's a little more elitist. And that's not true anymore, obviously. There's always the idea they would kind of be the more moderate wing and then the president. I don't know if the framers quite envisioned the nature of our populist presidency. They definitely saw it as a risk, though. And so there's this idea of there being a little bit of a check of the Senate being kind of in both directions. And maybe you kind of arguably see that happening here. Right. Like the Senate is the thing that appears to be stopping the, you know, the Trump administration not just from implementing the filibuster. The implication there is that in refusing to pull back the filibuster, Senate Republicans are actually the one stopping the Republican House from implementing its agenda, which is much closer to President Trump's agenda. That's the subtext about why they don't want to get rid of the filibuster, because they know all of a sudden they're going to have to take a bunch of votes on a bunch of House legislation the House Republicans will pass on narrow, narrow partisan margins that they don't want it to take a vote on. And they think might be bad, bad for them politically, maybe bad for the country, probably a mix of the two. But there is an element that the Senate Republicans, even though they've been really quiet, frankly, since January compared to the more vocal opposition some of them engaged into the Trump administration the first time around, there is this element of them still serving as a check. And John Thune, in his very John Thuney sort of Midwestern civil way, has been a pretty hard line on that. I mean, he's been very expressed, even though he's obviously got a good relationship with the White House, been very expressive day one, we're not going to get rid of the filibuster. And he doesn't appear to be inclined to budge on that. And he is, at core a kind of institutionalist and somebody who's been in the Senate for a long time and frankly has always been, by my understanding, somebody who's understood to be, even though he's quite conservative, somebody who gets the Senate and works within the contours of the Senate, somebody who will work with the other side, communicate. Come up straight Dealer. So this is kind of interesting on the other side, by the way, you see the Democratic senators are the first ones to cave. They're the ones, these are all moderate senators who are riding along with this moderate slash, a particular interest in the function of government, like with Tim Kaine, although I think he's also somewhat on the more moderate side of the political allocation of senators. They're the ones you would kind of expect to go along with us and be the first ones to cave precisely because they are the ones who are most concerned about seeing government work and maybe less inclined to try and use this to advance some sort of more aggressive agenda.
- [19:52]
E
Though it's worth noting that two of them are retiring.
- [19:55]
A
Two of them are retiring, absolutely. And like I said, none of them.
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E
Are facing an election next week. I mean the fact that they're retiring can be a reason one might argue that they should take a stand and stay with the party in its effort to extract concessions. Or I suppose you could take it as they want their legacy to be their interpretation of the best functioning of the institution, which is to preserve the filibuster, if that's really what they think is the biggest risk of not reaching a deal.
- [20:29]
A
Well, I'm kind of curious, Natalie. You may have a different sense of I walked away from this whole experience kind of being like, man, I don't know if the shutdown is actually that useful political tool for Democrats for the basic reason that Democrats constituencies take a big hit. I think they actually care about competent governance and more importantly, their whole agenda is benefited by confident like is kind of contingent on competent governance. While I think it seems like Trump is taking a greater share of the blame for this shutdown, I don't know how confident I am to actually translate into political gains to make it say that this is actually something that was worth Democrats doing. They got a handful of concessions, but the concessions are minor. I think they're important. They're minor. Frankly, I would have rather see from day one a much greater focus on the thing that Tim Kaine seemed to be focused on, ending rifts and ending other government abuses, something Congress could get on. And frankly you might be able to get some Republicans to go along with too, albeit in a quiet fashion then the ACA subsidies and other things like that that while I think are important were always going to be a little bit of a more policy loaded, harder sell. But are you more optimistic that the shutdown tactic was working and that there was more. There's reason Democrats should have continued it longer. Or am I misreading that?
- [21:44]
E
I have to be honest, I really don't particularly care about the politics. And so I didn't do a deep dive into the various theories of the strategy and whether it's working. And I'm actually interested to hear from Molly on this, who always has intelligent thoughts about all things.
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A
No pressure. Molly?
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F
Oh, I wouldn't say that, but I do care about the politics.
- [22:06]
E
Yes, please tell us, Molly.
- [22:08]
F
I think the Democrats were winning the politics on the shutdown, and I think it was taking a little while, but it was really just starting to happen. And it seemed to me to be crazy time to end the shutdown when you have Trump literally suing not to give poor people money to buy food. That was what was happening the weekend that they decided to end the shutdown. And I totally understand from a good governance perspective why also that would be the weekend you decide to end the shutdown. That's clearly what was happening for someone like Tim Kaine. And that's a disadvantage I think the Democrats often have, politically or strategically, is that they, or at least many of them, are less willing to see people hurt than President Trump is. But yeah, again, something of a strategic error because if you're willing to hold firm there, ultimately that is going to damage the Trump administration. And I think that the narrative really was starting to get traction as people were feeling more pain.
- [23:09]
G
Yeah, I think that's a. I agree with Molly on that. And to the extent that.
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E
Some like.
- [23:16]
G
Angus King said, oh, you know, we're fight standing up, but Trump didn't work. He's trying to take away SNAP benefits. SNAP is what we used to call food stamps. To the extent that was the rationale for reopening, I would at the very least have waited. I would have played out the string a little bit more and waited until the Supreme Court because the Democrats were winning in the lower courts. It was at the Supreme Court. We probably would have lost at the Supreme Court. But. But at the very least, I would have waited a bit and let that play out. If you have the Supreme Court rule against snap, then you really have clarified the issues and then you can say, look, we are being the bigger people, we care about helping people more than any political gain, and we're going to reopen it. I would also note that this is we may be here having the same conversation in a few months because things were only funded through January 30th. And Scott, as you mentioned, and One important gain for Democrats is that SNAP is now funded through the entire fiscal year. So one hostage has been rescued, if you will, or been taken off the table to mix the metaphors for the next possible go round. And so if the Democrats want to have this fight again at the end of January, the politics might be a little bit more, even more in their favor. But I think the way it went down was just kind of very odd. It was done kind of like in the, in almost in darkness kind of. It occurred very suddenly over the course of a Sunday, like Saturday. The headlines were, you know, the Democrats digging in flush from their victories on Tuesday. And by Sunday night it was, it was all over. I mean, if you go, you need to kind of like prepare people for. As to the politics. I think this will largely be forgotten by the time of the midterm elections. But I think it's good in the short term for Democrats to raise the salience of some issues that matter to them. I would. Sorry, just to indicate one thing, I do think that it is regrettable that Democrats were not able to get language in there regarding kind of rule of law issues such as, such as power of the purse issues. And one thing that former OMB general counsel Sam Bagenstos has suggested that perhaps they could have gotten language saying that the various rescission provisions available in the Impoundment Control act are not available for this fiscal year to help ensure that a budget that's agreed upon would actually be paid out by Trump or at least that Congress will not be complicit in that by, by approving rescissions and possibly clarifying another idea from Sam, clarifying that Congress could sue for injunctive relief against impoundments, just for starters.
- [26:08]
F
Yeah, if I can chime in on that along the same lines. I think part of what's so concerning about the whole episode to me is that I feel like the takeaway for Trump is one, the Democrats will cave under pressure. Two, he can do essentially what he wants even with the government shut down. He had an interview with Laura Ingraham over the weekend where he's talking about paying air traffic controllers and she says, well, where are you going to get the money? And he says, essentially it doesn't matter. I'll always get it somewhere. And that's what he figured out. Did he want to pay the troops? Oh, he was able to get the money somewhere and just forget about the Anti Deficiency Act. Does he want to lay off workers from Democrat agencies? Yeah, sure, he can do that. Does he want to raise the east wing of the White House and start his vanity ballroom project. Yep, no problem. So he was essentially able to blow past the law in either direction, whether it was withholding money that he should have been spending or spending money that he wasn't allowed to spend. And he was really able to carry on his agenda. And now he has also managed to use part of that lawlessness, which is the hostages rift, as a bargaining chip to get the government back open when he wants it back open. So I don't know, feels like a big win for him.
- [27:24]
A
Yeah, but look, I mean, I think this gets to the challenge, the dynamics, right? Like is Snap, for example, a hostage or is it actually the reason why a shutdown could work for Democrats? Right. Because you've heard it described in both ways. And the problem is that because it's the pain filled mostly by Democrats on this particular point, I don't think that's actually true. I think Republicans are going to get pressure for their constituencies, but who's going to get more pressure for their constituencies and who's actually going to feel more motivated motivating for them? That's the trick. And it kind of goes to every tool that's deployed in this whole kit. I do think I would be much more compelled if the objective in pursuing this sort of strategy, and this could come up in January 30th again, was to get structural reforms that do address the underlying balance of power between Congress and executive in part because I think those are probably going to be a easier sell with, with people like certain Republicans in the Senate who, for example, don't want to get rid of the filibuster. If they don't want to get rid of the filibuster, that means that they have certain issues with what the Republican House and the Trump administration are doing that they can't voice publicly. But they want to use that filibuster around for a reason. And maybe that's a reason to say, okay, well, we do need to take a little bit of appropriations power back. We do need to have a couple more safeguards and that sort of fight where the effects will be much more longer lasting. That could be huge. The ACA subsidies, really important policy tool, 100%. But you're going right to the. That's a huge concession for a ton of Republicans. It was always going to be a really, really big reach to get enough on board to actually cave on that point, let alone the White House. And if you win on it, again, it's this double edged sword because the pressure that would be the reason to illustrate why the Trump administration's policies are bad from the perspective of Democrats or constituencies. You're taken away because you want a political victory that you hope hope people are paying attention to and will know you should get credit for them getting ACA subsidies starting next year. When we had the election, that's a year away or more than a year away. I'm not sure they're going to get that memory in the meantime. Now, the horrible truth is when people don't get their ACA subsidies, it's going to be painfully clear that it is the Trump administration. Republicans in Congress have done that, in part because you're going to get a vote on it, at least in the Senate. I think it's just the deal just extends to the Senate getting a vote vote. But as part of this sort of arrangement, that's what Thune has committed to. And I think there's a reason. I think he'll follow through on that. So it is just a mixed bag and I'm not convinced this was the best use of it. And Democrats have this weird tendency, in part because I think they're often flagging for strategy where there's a local constituency that just wants to play hardball, in part because they see Republicans play hardball and they think it will work. The time I think I really remember this happening was Gorsuch. Right. Like the last time when during the this Gorsuch confirmation, there's all this pressure for Senate Democrats to use the filibuster to force the Republicans to get rid of the threshold for Gorsuch. Somebody who was objected to mostly like the objections were less about Gorsuch specifically and more generally about the treatment of Garland during the nominee at the end of the Obama administration never got a hearing, but when they did that, then you didn't have the filibuster available as a tool during the Kavanaugh hearings, where it was a much closer case. They actually could have made much more of a difference if you had a bigger threshold in place. Instead, you already done away with that, in part because he had a vocal angry constituency that was driving a strategy that I don't think really accomplished much. And I'm worried the same similar dynamic is here, but I don't know. We'll have to wait and see. I'm curious what happens in January. I'm hoping if they use this tool again, they use it with a little more structural changes in mind.
- [31:01]
E
Can I the reins for a second, please?
- [31:04]
A
I was about to ask you, I want to ask you a little about this law supervision. Is that what you're teeing in on?
- [31:09]
E
That is what I am am seizing the reins for. Because this is a weird thing. The politics unknowables aside, there is one knowable that is in my opinion, not getting nearly enough attention. And the intention I have seen does not encompass the full extent of this bill. So there are some provisions in some legislation that is part of this deal called the Legislative Branch Appropriation act, which top line that has been in the press is that it gives Senators, not members of the House, a private cause of action against the US Government. If the Senator or his or her office has their data subpoenaed, searched, some other verbs, basically accessed without notification under the private cause of action, they can secure up to $500,000. The part that was not emphasized enough in the press is that it's per incident. So that means if the Senator and his or her chief of staff, for example, have their phones searched and their email accounts searched, that's $2 million up to $2 million of taxpayer money. There are some other provisions in there that are pretty remarkable, I would say so in addition to the fact that I think the $500,000 figure is dramatic as it sounds already, it's an understatement given the per incident factor that I just mentioned. There's also the fact there is a second provision in that same part that defines a violation. So a violation for which the this private cause of action up to $500,000 per incident is available that defines the violation as seeking, maintaining or obtaining of a non disclosure order or judicial sealing order to prevent notification of a Senator to a Senator or a Senate office, which I read as meaning that if, for example, DOJ were to seek a court order sealing notification, that would somehow be a violation, except as provided under a different section which says that the government can seek a delay permission from a judge to delay notification to a Senator or Senate office if the Senator is the target of the investigation. So for people for whom criminal investigations are a bit of a black box, a target means that that is the person that is suspected of actually committing the crime that is under investigation. A subject of an investigation is someone who might be a very material witness who could in theory transform into a target if the investigation leads that way. So this would provide that a subject of an investigation does have to be notified. A target of an investigation could have their notification delayed for 60 days by a court order, and that is renewable. There are a lot of interesting things in here. I think the one Other really important feature is that in what seems to me a very legally questionable provision, it backdates this availability of a cause of action to January of 2022. The Press has covered this as being an effort to encompass the data that was seized in connection with Special Counsel Jack Smith's investigation of the, the January 6th Capitol attack. So that was records as reported from Lindsey Graham, Marsha Blackburn, Bill Haggerty, Josh Hawley, Dan Sullivan, and Tommy Tuberville. So I think that this, at least as it's being reported in the press, those senators might now have a cause of action because they did later learn that their records were sought. I will also note, and then I will stop talking apologies, that this covers subpoenas, acquisition, et cetera, of data, not of, for example, wiretaps. So that means metadata. That means if they went to the phone companies and got records that say this person made this call, it lasted for three minutes and 25 seconds. That is the type of record whose acquisition would lead to a up to $500,000 per incident recovery from US taxpayers.
- [36:10]
G
So I would just add that in addition to everything that Natalie said, it's important to realize who is on the other side of this litigation, which is an extremely a Department of justice that is obviously in this instance, beholden to President Trump, who is someone who was the main target of Jack Smith's investigation and who is very eager to do anything to retrospectively undermine that investigation. So to the extent that there are defenses that the Department of Justice could raise here in such litigation authorized by the statute, it's very unlikely that they would do so in, in any real fashion. They'll just be kind of handing over checks.
- [37:01]
E
I mean, in theory, it would be available to Democratic senators who are currently being investigated.
- [37:09]
A
Yeah, I mean, I suspect that's part of the motivation. It's worth noting, like while this is an issue set that is particularly cued in at this exact moment by a bunch of claims by Republican senators and legislators arising out of investigations by Special Counsel Jack smith related to 2020 election interference. It's a concern that does predate that. That has some Democratic supporters like Ron Wyden, who's been outspoken about certain elements of similar behavior like this, where there's been a concern that legislators have had their communications monitor been involved in investigations in a way that treads upon the separation of powers. So I suspect that's part of the reason that you saw this get a little take. One thing I'll say that I think is interesting is a, as somebody who is trying to think to a few years ahead of time to say, okay, we see a lot of pretty bad abuses happening by this administration in ways that are illegal or push the envelope of the law for which there is no clear remedy. Private causes of action are a very interesting one. And it's interesting to see Congress like in the Senate, set a little precedent, at least for itself, in setting out a private cause of action with potential damage against the government and waiving sovereign immunity for that. That I generally think that is a broad model that you may need more of if you are worried about the executive branch falling in the control of people using it abusively and not being willing to use criminal sanctions or civil enforcement of the sort directed by the federal government the way it's traditionally been done to protect various types of interests. The flip side though is I'll say I'm not sure this is actually constitutional, not just for the ex post facto reasons that, you know, Nelly, I think that's true as well. This Supreme Court has over the last three or four years really, really narrowed who can actually has the standing to pursue data breach claims. Which this basically is. I think that's TransUnion v. Ramirez is the main Supreme Court case from 2021 or 22, I can't remember, that basically said for individuals under existing statutes that penalize credit companies for accidentally releasing their credit information or misrepresenting credit data. They said a huge number of plaintiffs for whom that happened and that would have a statutory claim for damages don't have the constitutional standing necessary to advance that claim because they couldn't show actual damages arising from those leaks. I think you'd have the same problem here unless you could show some sort of concrete damage. And their vision of what the damage is that the Supreme Court leaned into, although they opened the door to say maybe Congress could expand this a little bit if they really wanted to, was pretty narrow. Maybe it's different here because it's Congress and there's a clear separation of powers equity. But I don't know. I don't know if that doesn't cut the other way. So it's kind of a little bit fraught terrain that I think may be an example of a statutory provision that somebody wrote without fully putting against the actual constitutional backdrop that the Supreme Court's applying it against. That I think could raise issues and that you could have structured it differently to maybe avoid.
- [40:00]
G
I was just going to say one thing, Scott, on the first issue you raised, retroactivity isn't that similar to statutes that have reopened the availability of Claims in, for example, cases involving sexual abuse of children. And hasn't that been upheld as constitutional?
- [40:21]
A
I don't know. I actually have been looking into this for a separate project. I don't know about that case specifically. I mean, there are obviously cases where you can adjust the jurisdiction available for various types of activity that was unlawful at the time. But it runs into a different issue when there's no clear available. When it's not clear, conduct would actually trigger civil liability prior to the time of enactment. And I think this falls more in the latter case than the former case because there was no civil liability arising out of this. But again, that would be like. I think that would be a defense the government have to raise. And that's where your point comes in, Eric. Probably the next three years. If this is about cases by Republican senators over Jack Smith's actions, they're not going to raise those defenses. They'll just settle in that case. That could just be a bit of a transfer. But I do think there would be a potential argument like a kind of ex post facto argument or concern with this otherwise because it is expanding substantive liability, not just jurisdiction.
- [41:20]
E
But expose facto doesn't apply to civil causes of action. It would be other types of constitutional.
- [41:25]
A
Yeah, I think technically it's like the due process clause, but the ex post facto structure, you're right, it's not the expose facto clause.
- [41:30]
E
I'm confident you're right that it will be challenged for constitutionality. Sorry, Molly, go ahead.
- [41:34]
F
Well, no, my thoughts are again more on kind of the politics angle of it than the super substantive legal analysis side. But I've just been sort of mystified by how this happened. Perhaps it's naive of me to think that the Democrats who caved on this would have read the bill. And I understand that it may have been put in at the final hour, but maybe they don't read it one last time or have their staff read it before they vote on it. Mark Kelly tweeted that the Republicans slipped in this nugget. Just how do you slip it in? How is nobody paying attention? And I think particularly with Tim Kaine, who again voted for this, going around talking about how he made these deals to make this happen and that part of what he secured was a moratorium on mischief. This is mischief. And so I don't know, it makes you or makes me nervous or cynical about assuming good faith in these sorts of negotiations.
- [42:41]
A
Yeah, it's a good question. And it's worth noting. This is not a 1400 page appropriations act or NDAA of the sort. This is I think combined like a little over 100 pages total. Oh no, there's 141. Let's see, it looks about 250 pages. If I'm for my oddball math, I'm looking at here maybe closer to 300. That's long. It's not crazy long by legislative standards, like end of the year legislation, which comes together very quickly, it's way longer than that. So 328 pages. Here we go. PBS total it up for us. So I agree, I think there's a real question there. But that also for me tells me maybe this is actually something. There are Democrats who support the Snukin claim may actually be quite an accurate representation.
- [43:23]
F
So I would like to know, I hope that we get answers on how it happened.
- [43:27]
A
Yeah, fair coin.
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- [46:47]
A
Well, speaking of some accusations of self dealing, let us go back to our second topic and that is the question of the latest raft of pardons we have seen President Trump issue. President Trump has not been shy about the use of the pardon power already. Usually you see presidents really lean into that pardon power around like November 7th at the end of their fourth year in office when there's no more political ramifications. In this case, President Trump has not really seemed concerned about those political ramifications because he has been using it in a wide variety of ways that causes a lot of controversy on a lot of different fronts and the past week has not been any exception to that. In the last week he issued as kind of one large blanket pardon, a pardon for a whole array of people who were involved in 2020 election manipulation or at least alleged to have done that. What the various people have alleged it's manipulation. This includes a number of people who served as the fake electors who sat and convened on their own authority and appointed platforms of electors for the party that lost the Republican Party in those states, then sent them on to Congress as if they were the real slate of electors that played into some of the schemes. As to how exactly the Senate would twist the results of the election and Congress would twist the results of the election in President Trump's favor. Although it didn't ever came about. You have people involved, most notably all, I think all six of the alleged unindicted co conspirators from the Jack Smith indictment, also from the Georgia indictment against President Trump. That includes people from Rudolph Giuliani to of course Sidney Powell, who we all remember, to a number of other folks who were involved in different aspects of the conspiracy or alleged to have been involved in various aspects of the conspiracy. Boris Epstein, a number of other folks in this whole universe of these pardons, notably, the only person that I recall having federal charges brought directly related to their conduct in this, I think, is President Trump himself, who is expressly excluded from the pardon. So none of this is a pardon aimed at ending any ongoing criminal procedures, because, of course, the president's pardon means nothing when it comes to state violations of which many of these people have faced or are facing charges, although several of those have gotten kind of derailed. So, Natalie, I think that poses the question, which is what exactly is the Trump administration trying to do with these pardons, which have been the subject of a very vocal campaign, although one aimed at a particularly friendly media segment by Ed Martin, the very controversial, very consciously high profile, I think it's fair to say, some might say media seeking czar clemency attorney for the Trump administration. What are they trying to accomplish exactly? And then what will the ramifications be if this doesn't interrupt any ongoing prosecutions, does it have a negative consequence we should nonetheless be concerned about?
- [49:47]
E
Yeah, I mean, listen, I don't know what the motivation is. I think you could make the argument that it is is intending to continue the narrative that these individuals are under unjustified attack and that perhaps in the future some overzealous prosecution run by politically motivated Democrats will still try to go after them. And so this is trying to nip that in the bud. Alternatively, you can frame it as just a way to reward these people to make a demonstration that having supported the President in 2020 with respect to his election interference claims, you'll sort of be safe if you do controversial things like that. It could just be that maybe there is some concern that they might be subject to criminal prosecution at some point. That there may be. I mean, who knows, right? There are always investigations happening within DOJ that people don't know about. That's the nature of investigations. I would find that hard to believe. But who knows? I do just want to say this does relate to various features of what happened in 2020, which I think is worth pausing on to dig back into the background, which is not only for the purpose of logrolling for the Aftermath, which is a series that I narrated for that we produced a wonderful series, a wonderful series, wonderful series. Two seasons, two seasons of digging into the aftermath of the 2020 election. But it is, I raise it, because memories fade. And I think we've gotten to the point where you see these names you see the pardoning of the fake electors and you sort of forget what all of that was about. And the reason that I want to just remind people quickly, as I said, in addition to just saying you should go listen to the aftermath, because if you want to get into nitty gritty details, that's where you can find it. It's also because the way in which these types of interferences happened, there haven't been structural changes that would address and mitigate the risk of that happening again. So for example, Rudy Giuliani was involved in spreading a lot of information, meeting with various state and local officials to try to convince them about different methods they could try to use to complicate the election. The reason that all of this coalesced around the date January 6th is because that's when Congress meets to review the electoral count from the Electoral College and actually certify the results of the election. Most people think of the election as being done in November, but it's actually not official until January 6th. The fake electors Scheme There were actually a bunch of different ways that fake electors were created or self appointed and the way in which they were going to try to engage on January 6th. Then some of them were trying to get to Vice President Pence on this legal theory that John Eastman, Episode two of the Aftermath Season two Rudy Giuliani is episode one, is responsible for having contributed to this legal theory that the Vice President had the authority to reject the count because of an obscure provision in the 12th Amendment. There's a lot more to it. Sidney Powell was involved with with a bunch of legal challenges to different states election processes, many of which were found frivolous. She was sanctioned, I believe, by numerous courts for filing frivolous cases, but had also been involved, if I recall correctly, in a controversial meeting. I believe this came out in the January 6 committee relating to a discussion around whether the military should be used to seize voting machines. I believe she was present at that. But Eric, maybe you remember, I don't want to be misstating that, but in any event, I raise all of this like I said, because whether or not the pardons themselves are meaningful with respect to criminal charges that may or may not be pending or viable or happen in the future, it is just a continuation of burying the realities of what happened on January 6 and in the lead up to it and in the aftermath of it for that matter, in a way that is very disturbing to me because it means that not only has there not been accountability for many of these people Sidebar there's been other types of accountability CEG the aftermath. Rudy Giuliani, for example, was sued for $148 million, which he did lose that defamation case and had to declare bankruptcy after it. He and John Eastman, I believe, were both disbarred. Other types of accountability, but not criminal accountability. And in terms of the sort of structure and one could say loopholes through which this happened and that were exploited in order to try to interfere in the these many different ways, those haven't been resolved. And so I think that getting lost in the discussion of whether there were actually any crimes or criminal charges pending, we are losing sight of all of the other lessons of accountability and need for reform that those individuals raised.
- [55:50]
A
Molly, I'm kind of curious about your thoughts on this because as we already noted, are a little more sensitive to maybe some of the political implications of this stuff than those of us who get caught up in the legal technical weeds. There's obviously an audience that they're speaking to with this. This is the lowest kind of common denominator explanation would be this is something Trump's core base really wanted, they believed in. That's who Ed Martin represents and speaks to more than anyone. And that this check scratches the itch for them. And maybe that's enough. But maybe it goes further than that, too. I mean, what's your sense about who the different audiences are and the messages they're trying to send to them?
- [56:29]
F
Yeah, absolutely. I think that some of it is to the base that kind of cheers on any effort, even if it's mostly symbolic. That looks like Trump is taking the fight to this sort of supposed conspiracy against him. But I feel like the, the real audience here is not just the people receiving these pardons, but people who might in the future be in similar positions after the election and be considering whether they're going to act like Rudy Giuliani, Sidney Powell, Mark Meadows, Jeffrey Clark, all these people involved. Tina Peters, the Republican clerk of Mesa, Colorado, who, who Ed Martin has also been trying to get relief for. She was found guilty last year on state charges trying to get relief for her. Anyone who makes it easy to claim that an election was stolen from you and then take steps to steal the election right back. And so I think that's what's happening here. I think this is a game plan for the future, for the midterms maybe, certainly for 2028. And the idea is to tell people, no, no, no, don't worry. If we win, you're not going to be punished. And those expectations really, really matter when it comes to determining the success of such an effort because you need people to go along. And so I think that's the message that he's sending. I think also particularly in the context, again, I go back to what I mentioned related to the shutdown about showing that he's going to pay the troops and he's going to find the money to pay them, and that could be money that he's getting from an ally. It's the same message. It's the idea that we can have the power here, and if we have the power, you're going to be okay. So you should do everything to help me keep power. That's what I think.
- [58:19]
A
Yeah, I don't disagree with that and I've heard elements of that, but I'm slightly more skeptical that this makes that big a difference on that metric even, because in my mind, look, if Trump had won in 2021, as in succeeded through whatever the machinations were, all these people knew they were going to go away scot free with it. They wouldn't even need a pardon because it just wouldn't be prosecuted to the extent except for state charges, which we know are still ongoing. Present issues have encountered obstacles at various points, have their own weird politics that are there. So I'm not sure how much this promise of a future pardon actually changes things. The one place it would change things is if Trump obviously issued a pardon. If these efforts fail and then he issues a pardon before he leaves office, which people thought was a real possibility in 2020 and the first three weeks, two weeks, two and a half weeks of 2021, and then didn't come about. So in my mind, maybe this is a corrective of that saying, you're right, I should have done it last time, but I didn't. But I'm going to do it this time and the next time, that could change the calculus a little bit. Right. But I think he's already damaged credibility on that front to some extent. These people, for better or for worse, they've had, as Natalie noted, they've had a rough couple years. And anybody paying remote attention, by the way, would know it's not because of the federal government. There's elements of that, you know, they've got subpoena, they had to do testimony. They were worried about federal criminal prosecution. I have no doubt they were and would still be if not for this. So, yeah, I'm not. I don't know. I agree. I think maybe that's part of the formula here. I'm not sure how big a chink in the armor. This presents how big a difference maker this is on the calculator.
- [59:58]
F
Yeah, well, that's totally fair. I mean, I think that the message I got your back to just make that really clear and really loud does matter. Even if these people should know, oh, you know, if he wins, you won't get prosecuted anyway. I think that as often as he can send that message, he will. And if this is what he wants strategically, should. How big a difference it's going to make, I don't know. It's obviously part of broader efforts around what's going to happen with the next election, like taking over CISA and controlling the media environment more. There are so many things happening across so many fronts when it comes to the question of a free and fair election in 2028. This is one tiny part.
- [60:38]
G
Yeah, I agree with everything everyone has said. I would say that this is probably something that was brought up to Trump and probably even brought to Ed Martin by people like Cleta Mitchell, who has actually somewhat oddly tweeted out a statement purporting to come from Ed Martin explaining the pardons. And Trump was probably like, sure, whatever, I'll do this. I mean, Trump has never met a leg that he doesn't want to urinate on. And I think this is just further illustration of that. But in terms of the strategy, I mean, it's a little bit odd was people were not. We are now talking about these people in ways that we were. So if anything, it's not memory holing what happened, it's digging it up again for people. And, you know, the general statute of limitations for federal crimes is five years. So any actions in 2020 and January 2021 would be long past the statute of limitations by the time that the Trump administration is gone. And even if that were not the case, one consequence is that now, if for some reason a Democratic House in 2027 wants to subpoena these people, they would not be able to plead the Fifth Amendment.
- [62:04]
A
Yeah, yeah, that's a really good point. Exactly. In some ways, that's a little bit of a. May prove to be a cell phone independent. I don't know how many more hearings and committees people want to have on this again, but we'll see. So one other aspect I want to touch on before we move on to our third topic about this, which is something I've wondered a lot about, is that if nothing else, so this does drive home, I think, what we've already concluded, which is that the reliability of federal tools from posing these consequences seem weaker than they've ever been. After President Trump's reelection, I think for a long time, people said, oh, well, we've still got all these federal tools because Biden won. And if Republicans win again, it's not going get to, to be Trump. And therefore a Republican candidate's not going to tie himself to that kind of toxic legacy. And therefore these people, we can focus on federal tools and the available tools we have and let them play out. And of course, again, state remedies and other remedies were the main focus for most of these people. There wasn't a drive to expand the toolkit very much, at least not a very effective one. But I wonder if that's going to ring really differently now that we're in an era where it looks like you might have this bifurcated view, where every four years you got a different presentation. Who's not going to enforce the law for people who did it. And this could happen for Democrats as well, where maybe Democrats will start turning this direction, playing hardball like we're seeing around redistricting and other issues. Right. That's really disconcerting. I wonder if state this really underscores, like maybe states need to be much more proactive in addressing these and maybe setting up processes for addressing these sorts of violations. In particular, I wonder why we haven't seen more states pursue sort of a long arm statute sort of approach to this with their own criminal enforcement like you could imagine there being. I think you would face maybe constitutional challenges, too. I'm not sure they'd be successful. But you can imagine California arguing, look, when electors try and change the election results for the president or for a state in another state, that bears on our equities as a state because it means that our votes matter less because the candidate we supported got butted out. Maybe that's a losing argument, but I'm not sure it is. And I'm not sure you couldn't see California or another state really try and say, look, we're going to prosecute a variety of people who engage in election interference in different corners of the country, not just in ours. Maybe there's an argument for that here because you don't have reliable federal enforcement. And in the end, all these elections, a lot of these issues, there are really things that are primarily subject to regulation by the states. But I don't think it's necessarily only the state in which this conduct occurs. There's practical difficulties, extradition, investigation, cooperation, things like that. But it would be one more tool in the toolkit. Does that seem crazy to you all? I don't know. It's this idea that's kind of been percolating in the back of my mind for the last couple months. And I am not sure there are other contexts where you see these sorts of long arm statutes and enforcement efforts. I'm not sure why you couldn't see it in, in election enforcement as well, but I'd be curious if you guys have thoughts on that.
- [65:13]
G
I would read that piece one day.
- [65:16]
A
I got a couple years, luckily, before it's too relevant. Well, not really, actually. I guess we got midterms coming up. A couple months at least. Yeah, we'll have to see. We'll have to see. Maybe something I have to look into. Well, speaking of helping one's friends in case of election interference, let's go to the opposite end and let's get to the issue of punishing one's enemies when it comes to election interference by the Trump administration, something that has become a little more common to say the least. I think if nothing else you can say the Trump administration looked at the Biden administration's somewhat slow handling of what they saw at least, and what they at least claim as political retribution cases. And they said, well, we're not going to do it at that pace. We're going to move these along as quickly as possible. Because we are seeing the Trump administration pursue an array of criminal prosecutions against alleged enemies, many of which are running into real problems. We of course have the James Comey, Letitia James prosecutions where we have accusations of indictive prosecution, among other issues that those cases have run into, including questions about the authority of Lindsay Halligan, the attorney who's been pursuing them, interim youth attorney who's been pursuing them. We have investigations into people like Adam Schiff that so far haven't resulted in anything and may have run aground, not least because Schiff got a pardon, but among other issues as well, other enemies sort of in the scope. And now we're getting reports of this pretty substantial new set of investigations reportedly moved from I think it was the Eastern District of Pennsylvania down to the Southern District of Florida, from one US Attorney to another after the first didn't feel like they could make charges stick. Looking into a bunch of government conduct by government officials around late 2016, early 2017, the era where the conclusion was reached or the the proposition put forward that Russia supported the Trump administration. There were concerns and allegations that Trump administration may be colluded to some extent with Russia. That's all the basis of the Mueller investigation. And the main focus of the Mueller investigation. That's an issue that the Trump administration doesn't seem ready to let die and instead is now at least subpoenaing people involved with those efforts before a grand and I think having at least calling one or two before a grand jury, if I'm recalling correctly now I'm doubting myself on that fact, fact where clearly they're leaning towards something. They're working towards some sort of a criminal investigation, looking at this sort of conduct in the Southern District of Florida of all places, again, where most of this conduct did not take place. Molly, you've been following this whole range of cases for us. Let me turn to you first. First, give us a sense of how this broader campaign is shaped and how it's faring politically and legally. And I talked about this newest chapter in it and where exactly it fits into the broader strategy driving these efforts.
- [68:00]
F
Yeah, I wouldn't say it is faring particularly well legally. By the time it makes it to the judges, they've managed to secure indictments, although with some trouble there, too. And of course, you know, the dodge about the ham sandwich, the Comey case, the defense has several motions, many of which seem quite strong. There's the motion to dismiss, as you mentioned, on selective and vindictive prosecution grounds. There's the improper appointment of Lindsey Halligan, the Letitia James case. She has those same motions. And then Comey has some more on top of that literal truth motion. And there are questions for Comey about the need to disclose grand jury materials because of irregularities and what Lindsay Halligan did there. I think that a great through line or opposite of great between the Comey cases and the Letitia James cases, is there are all these procedural irregularities, some of which have to do with Lindsey Halligan, an insurance lawyer who was appointed after Trump got rid of Eric Siebert, who was a career prosecutor, because he wasn't willing to bring these charges that are frankly ridiculous on their face, her having no idea what she's doing and then causing all these problems that are going to make it more difficult, difficult for the cases. So, yeah, I would say by the time they get before a judge, the judges have seemed to be fairly skeptical. So that's not great for the government. On the other hand, they're managing to bring the cases. If you think about Lisa Cook, whom they didn't ultimately bring a case against, but who there was a criminal referral against for mortgage fraud, fraud that was then used to remove her from the Fed, it seemed like a similar thing was Going on with Letitia James, Ed Martin effectively said, if you step down, we'll take that as a sign of good faith and then we won't bring this prosecution. So, I mean, it just depends on what you look at as a metric of success. Are they succeeding in intimidating people? Are they succeeding in getting people removed from their jobs? Are they succeeding in making people's life hell? Yeah, maybe. Are they going to succeed in winning a conviction? Extremely doubtful.
- [70:10]
E
Yeah. I think that's such an important point that people really don't think about, which is that the mere fact of being investigated, let alone being indicted and having to mount a defense and appear in court, even on completely frivolous charges, is really dramatic. It can be incredibly expensive. It's hugely disruptive to your life. And it can, as you say, Molly, it's a really important point. It can have a lot of follow on consequences professionally, reputationally and otherwise. So the fact that they may not go much further, they may all fail on a motion to dismiss, for example, doesn't mean that it's not a big deal.
- [70:59]
A
I don't disagree with that. But I want to throw two other variables into the mix that I think enter in here that we've seen in play. One is that the target to these investigations obviously are not enjoying this experience, nor should they. It is very costly and burdensome for them. They're also sophisticated actors that have mechanisms around them in some cases to handle these. And what we saw in the case of Trump and several of those people during the last few years where they face these sorts of investigations, is that there's been a groundswell of popular support that's defrayed a huge amount of the expenses and powered a big apparatus to back them. I don't know of the scale of the effort to do that. I know there are certain mechanisms to do that for certain people facing different sorts of targeting by the Trump administration. And so my hope is that that can defer, at least for some of these people, a lot of the painful element of it. Now, I don't think I want to pretend like that gets rid of it entirely. And you know that that would be a problem if it did. But it is a, you know, I'm not sure it is. I'm wondering, I wonder how much of this is the symbolic element versus the actual pain element and how much of it is, particularly on the symbolic side, less about punishing enemies, although I think there is part of that and more about creating a false equivalency. The idea that if we get the indictment that's all they ever got against Trump and his allies for the most part. And then all of a sudden, the history books, the next election, both sides can say the same thing about the other side. And then you've got your narrative built right there. And yeah, yeah, it's going to punish his enemies. Yeah, it's going to look bad. But I think it's, I almost think it's more about running them through the mud than it is about. In the same way that, that Trump and his supporters feel like they were run through the mud, or at least say that they feel they were run through the mud, than it is about the retributive aspect of it. I don't doubt that last half is there because there's some petty people involved with this stuff. But I don't know, I don't know. Does that ring true to you at all, Eric, or Molly?
- [73:10]
F
I think that it is definitely useful for them politically even to be able to say, for Trump to be able to say, well, obviously she's guilty of something. Here she is in court and then maybe it doesn't matter what happens in the end. I do think that as an intimidation tactic, though, it's probably effective and not only against these higher profile figures, but perhaps even more so against. I'm going to bring up sandwich guy. This is an example of someone who really is just a random dude who doesn't like what Trump is doing on immigration and made a very bad mistake on a Sunday night on U Street and tossed a sandwich at a cop and then he was fired from his job at the doj. He was dragged to court. He was not ultimately convicted. But if you are considering protesting the administration going to one of the anti ICE protests in Chicago, for example, you might think twice. You certainly might think twice. If the protest starts getting a little louder, a little rowdier, you might decide that's my cue to go home or you might not get out on the street in the first place. And so I think that the prosecutions on any level, whether they're of the random guy or whether they're of a higher profile political enemy, probably have a chilling effect that goes all the way from top down.
- [74:35]
A
Yeah, yeah. I would say I'll differentiate my case between the big fish and the smaller everyday thing. The smaller everyday things I find much more disconcerting in a way, the efforts against the big fish. Not that I don't find those disconcerting, but the pain and the pushback mechanisms just don't seem as there as much or the chilling effect Therefore, a lot more serious.
- [74:54]
F
But I do think, if you're a congressman and you're deciding, how much trouble do I want to give Trump? Even if you're deciding, am I going to side with the Republicans on voting to end the shutdown? I think this factors in. You don't want to be Adam Schiff. You don't want to be the guy who has to. Sure, there are these structures in place that make it easier for people. There are so many people who dislike the Trump administration who feel really passionately about that, who will offer their services pro bono. That exists. But you don't want to have to do any of that in the first place. You don't want people to be looking into whether you made a misstatement on your mortgage records. And with the entire apparatus around that weaponized against Trump's political enemies, where it really looks like they are now pulling files of Trump's political enemies and finding any small misstatement you've made, you have no idea whether you've made a misstatement on your mortgage forms. Many people have. You don't want that scrutiny. So I think it is chilling on people who are officials or representatives as well.
- [75:52]
G
And, of course, there's a whole category of people between the congressman and sandwich guy who can be chilled federal employees, people who work, say, for a defense contractor, they see skullduggery going on and they don't want to. They're considering whether to blow the whistle. I mean, there's everyone at law firms.
- [76:11]
E
That might represent people who are unjustly accused of things that are frivolous.
- [76:16]
G
Exactly right.
- [76:17]
F
And then there. And then there goes the structure that's protecting the people at any level that makes this less of a problem. If the law firms are intimidated so that there are fewer of them who are going to offer their services and mount robust, vigorous, good defenses, then it becomes even more of a problem. Yeah.
- [76:34]
E
And I think one thing that's worth saying, it's obvious, but it bears saying out loud, is that you can't prove how much this is happening. Right. You can't see the absence of pushback. I know for a fact, I think we all know that there are many, many, many law firms and lawyers that are not representing clients that they otherwise would have and that they did in the past. And it is harder and harder for people to find legal representation, even when they're facing frivolous cases. And that is a huge part of the underlying assumption that you have, Scott, of what the consequences of this will be. Because if things can't get tripped out of court. If you don't have representation that is able to mount a defense that involves sophisticated motions to dismiss, or even if you have excellent lawyers with which there are excellent lawyers all over the place, if they are faced with caseloads that are unmanageable, they can't represent people as well. There are a million legal challenges happening in every which venue. And if you just can't get the same degree of system functioning in the justice system, because it does rely on all of these actors who are chilled and very various degrees, you can't assume that the system will work out the way that it's supposed to and the way that we're accustomed to it working.
- [78:03]
A
Yeah, I don't disagree with that. Again, it's not that there isn't a systematic effect here, but the question I guess I come down to is what is the objective that they're trying to reach and how does it actually affect these things? Right. Like indictments they can bring and they can issue, if they can get a grand jury on board, that is like the main barrier. And that hasn't appeared to be kind of the, you know, a major hurdle for them to cross in at least the higher profile cases. Although frankly, in local prosecutions in D.C. it really has been in LA and a few other places. You know, those are things that they can do and that they have the harmful effect potentially regardless of pushback, because they don't even get to be involved in the process before that, then. And so the question is, what is the tools that they're going to have, the repercussions that they're focused on? And I'm not sure that that, like I said, I mean, I think a lot of the harm comes from the false equivalency they're trying to paint, which you get through kind of the first bat. Now, notably, here's where I think their strategy may backfire on them. Part of the reason that you only got to the indictment in the Jack Smith case and other contexts is because they started them very late and you had election interference stop them before you could get anywhere. And not to mention the Supreme Court decision, a bunch of other stuff, Right? That's not the case here. You're going to have three and a half years to finish out these prosecutions, which will be ample time. The flip side is here you don't have a basis where you're probably going to win. In fact, it seems pretty clear you're not. So they're going to be in this case where all of a Sudden they've said, well, we brought all these cases against our enemies. But. But the people on the other side are going to be able to say, yeah, but they were dismissed for complete lack of evidence and vindictive prosecution. And because you didn't have a US Attorney who was qualified to present them and you tried to squeeze one in in a way that was found to be legally lacking, all this stuff really begins to backfire on that fundamental strategy and the broader narrative effects to say, like, well, you know, yeah, there's going to be a chilling effect from this, but on the back end, they're losing a lot of these motions. That makes it less effective as a deterrent, as an incentive, as a tool, I think, than it would if they were able to bring them and kind of lead them at indictment to key point. Frankly, if they brought these cases two years later, maybe they'd be more electorally beneficial to them because you probably wouldn't get a negative resolution against them that they're almost certainly going to get, whereas they will now because they're doing it now.
- [80:31]
E
So I think there are a couple of fallacies to that logic. Number one is people often don't remember that someone was ultimately acquitted. Three years later, people remember that someone was indicted. Number two, I think that you're understating the significance of a chilling effect, again, because you can't see the consequences of chilling. You don't know what would have happened in the absence of the chilling effect. And I think that that has a hugely dramatic consequence for our democracy. If people are not exercising their First Amendment rights or they are not conducting themselves within the structure that we have democratically, we're just in a totally different world. And again, that has a longer timeline than if you're matching it up against the length of time that it would take for this backfiring that you're talking about, which may happen. But if you're talking about what's going to happen along the way, there's a ton of damage that's going to be done. And is that damage reversible by the fact that charges are ultimately thrown out? I really don't think so.
- [81:42]
F
Yeah, I agree with what Natalie says. I mean, on point one, I think you are right. I'm not sure that voters, if they're the target audience, are going to recognize the distinction between being indicted and being convicted and certainly are going to kind of appreciate the nuance of, well, this was dismissed for vindictive prosecution. So I think if Trump is just trying to prove to his voters, I'm getting revenge, then he's already kind of succeeding even by getting the indictments. And you see the way that he tweets about what was done to him. He says, they indicted me. Right. He's mad enough about the indictments. So it's like you said, why aren't the indictments enough as retribution for that? And then I think the other thing that I would bring up, up you mentioned, Scott, when you were cueing this up, is the investigations now, the subpoenas they're issuing related to this grand conspiracy in Florida, where perhaps they'll get a friendlier judge and also where I think they believe they're going to be able to sweep in a lot of the administration's perceived enemies and also where it's possible that they're going to be able to bring cases against against people like Adam Schiff, who they seem to be having trouble getting indicted on allegations of mortgage fraud partly through and he has a pardon for things related to January 6th. But they're also upset about his conduct related to the Russia investigations. Their issue there is the statute of limitations. But if they bring this conspiracy case, they're able to say, well, this is when the conspiracy ended. Either it could be continuing now or the last act could be perhaps Jack Smith Smith bringing his indictments. And so then the question is, can you sweep in more conduct that you're angry about than you can now? Do you wriggle out of some of the trouble you're having with statute of limitations?
- [83:29]
A
Well, I think we're out of time for the segment now. We'll have ample opportunity to revisit when we see exactly what sort of vindictive prosecution motions succeed and how people perceive them, whether they get owed an evictive prosecution or not. Fortunately, it's named right. If nothing else, the concept is not one that's hidden beneath the technical title on a legal briefing. But this, of course, would not be your actual security if we did not leave you with some object lessons to ponder over in the week to come. Natalie, what did you bring for us this week?
- [83:57]
E
I brought a New Yorker article that I just so deeply love, I can't even fully express, is called the History of the New Yorker's Vaunted Fact Checking Department. It is by Zach Helfand, and it is about, as you'd suggest from the title, the fact checking function within the New Yorker. I love it for several reasons, one of which is it does such a great job exposing the amazing degree of neuroses that goes into fact checking and the ethos behind it that is so purist about how important facts are. It gives a little bit of a sense of editing as well, which I have to say. In my previous life before coming to Lawfare, I was just a practicing attorney and I had no idea what editor meant. So this is a good little glimpse. Although I will say, because I'm sure fact checkers would be very upset if I did not make it entirely clear that editing is not the same as fact checking. They are two different functions. But it's description of the relationship between fact checkers and authors was really great. It's also just a phenomenally written piece and I want to read one of the lines that I laughed out loud about and I am considering adding to my signature line in my emails. So it's talking about Ross, who's the founder of the New Yorker. Back in the teens or twenties, it says when a fact aroused his suspicion, he'd write up a memo with comments like Bushwa Nuts transcends credulence. A favored note was given Facts we'll fix. According to the writer Brendan Gill, this is the part that I want to put in my signature line. The impression conveyed by these words was and was intended to be that a sorely tired man of superior skills was consenting to improve the work of someone who is at best lazy and at worst an imbecile, ross wrote to a writer who'd committed a minor fact error. I regard this as a personal slice, so if you ever submit an article to Lawfare and it is really inadequate, you might expect that in my response.
- [86:11]
A
Wonderful. We have all of that to look forward to, for better or for worse. Hopefully not. Hopefully our work is up to snuff. Eric, what did you bring for us today?
- [86:21]
G
I brought the Week Junior, which is my 12 year old daughter's favorite magazine. This is a news magazine for kids from ages 8 to 14 that is really good, that does not speak down to people but meets them at their level and actually covers real news. Recovery begins after Hurricane Melissa, uncertainty over government food program, the same issues that we cover here at Lawfare, but also has polls about kids interests and has little interesting factoids such as the birth of two capybara pups to a mother named Buttercup at the zoo in New Jersey. It's a great way if you have a kid who's in that age range, especially at the younger as part of it, to begin to have a lifelong interest in consuming media and helping people like us stay in business.
- [87:15]
A
I love it. I am actually a big fan of the week. The adult version, I'm assuming it's related to. I don't know if they would somehow I feel like they'd get in some sort of trouble with that. We've got a publication that pulls together is basically like a review of media from around the world that pulls together little excerpts from articles and stuff like that. I'm a fan. I had a subscription, I think when I was in high school or maybe in college or some point. I think a relative got me a subscription. I was like, oh, that's actually a nice easy read. Good way to get a diverse array of perspectives and different news and has good global news as well as US based news. And then years later they quoted several lawfare pieces I wrote for a while. So for a while someone there was a lawfare reader was quoting pieces not just by me, but by a few other people as well. I have not checked in. I haven't gotten an alert recently that they've been pulling more pieces. So maybe I'm just. My pieces aren't enough. I mean, hopefully other Lawfare pieces are making the cut, but worth checking out. I'm a big admirer of the week and the fact they have a junior version I will keep in mind for when my kids are able to read, which they're not quite there yet, but soon enough. Soon enough. All right, Molly Briggs, I'm going to.
- [88:11]
F
Give you the junior version just for the capybaras.
- [88:14]
A
There you go. The capybara news is important. Can't spell it, but still very important. Well, for my object lesson this week, since cartoons have been mentioned, I have rediscovered one of my favorite cartoons which I will share, which I did not realize was still a going concern. It's not really, but they have become very generous with the archives and that is of course Gary Larson's the Far side, a wonderful comic that I think stopped producing new ones like 25 years ago, 30 years ago, a very long time at this point. But I did not realize this until just the last week or two. Thefarside.com is a very active website where Gary or someone acting on his behalf half posts every day five or six old scripts that really speak to the moment, I would say politically. And it's become a daily stop for me that I highly recommend. He also like periodically posts new things that are not quite like entirely far side scripts, although they are kind of. They're often like bigger art pieces but that have a kind of far side logic and aesthetic that are worth checking out, including some sketchbooks and other stuff. And then Some of which are more like the fact that he's actually a very talented artist, even though the Far side kind of deliberately looks a little ridiculous. So I highly recommend it. I was always a huge Far side fan. I remain a big Far side fan. And the Daily Dose is a great way to curve stuff. And it's kind of amazing because if you look at it, almost most of these scripts are as old as I am. So these are decidedly middle aged comics that really still speak to the moment, which maybe is a sign of how little things change over time, for better or for worse. With that, Molly, bring us home. What did you bring for us for your object lesson today?
- [89:41]
F
I should have brought a sandwich, but I did not. I bring art by Jenny Holzer. I went to the Glenstone Museum. For those in D.C. or around D.C. this is in Potomac, Maryland. It's a free museum, although you do have to make reservations. And it's essentially the private art collection of a millionaire, extremely, extremely rich man, at least millions. I mean the is art by a very famous modern and contemporary artists. Jenny Holzer in particular. She mostly does LED signage text in light. She is often highlighting kind of the intersection of advertising and politics, sort of slogans and where they're empty and where they're actually very meaningful. But she has also done a lot of art where she has FOIA'd documents related to the Iraq War, Guantanamo Bay, torture of detainees, and recently some January 6th related stuff. So she has these gold plated really large blow ups of emails to and from Mark Meadows related to the insurrection at the Capitol. And I think, I mean I'm not an art critic, but I think part of the point she's making, particularly with the FOIA stuff is this was all private. Nobody was really supposed to see it, but in fact it's very important such that it's, you know, even worth blowing up. Giant font and having displayed in a room and examined as not just news, but something kind of bigger and more meaningful than just a small news item.
- [91:21]
A
Fascinating. Well, I actually never made it to Glenstone. Even though I love a good art museum, it's very hard to get 4 year old and 1 year old on board with visiting art museums. Sadly, in my experience. But maybe the fact that it's outdoors and you have a lot more space to kind of run around may make that an easier sell. So I can pull that off one of these days, I think.
- [91:36]
G
Doesn't Glenstone have an age floor like no one under 12 or something?
- [91:41]
A
Oh really? I don't know. It may be a while before I.
- [91:45]
F
Letstone and I will say that once when my husband answered the door at home, the guy who was at the door trying to sell us something asked if mom and dad were home, and they let us into Glenstone despite the baby face. So I can't say.
- [91:57]
A
All right, well, there you go. That's good to know. That's good to know at least. Well, wonderful. That brings us to the end of this week's episode of Rational Security. But it is of course a production of Lawfare, so be sure to Visit us@lawfairmedia.org for our show page, for links to past episodes for our written work, and the written work of other Lawfare contributors, as well as for information on Lawfare's other phenomenal podcast series. While you're at it, be sure to follow Lawfare on social media wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast 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 her music, as always, was performed by Sophia Yan, the wonderful Kara Schillen editing Rational Security this week while Jen is out. Thank you Kara, on behalf of my guests Natalie, Molly and Eric. I am Scott R. Andersen and we will talk to you next week. Until then, goodbye.
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