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- [00:01]
Scott R. Anderson
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security Chatter, Lawfare, no Bull and the Aftermath.
- [00:32]
Lemonade Sings.
- [00:33]
Mikhailo Soldadenko
A Pet Insurance Customer Review My new.
- [00:35]
Scott R. Anderson
Puppy swallowed a bone.
- [00:38]
Anna Bauer
Still a good boy though.
- [00:41]
Scott R. Anderson
And boy was I glad that I had lemonade.
- [00:47]
Anna Bauer
I was paid back quickly and efficiently. Everyone was so nice. Captain's Pet in shape.
- [01:00]
Scott R. Anderson
And get a'@lemonade.com.
- [01:02]
Sleep Number Advertiser
Pet why choose a Sleep number Smart.
- [01:04]
Paige (Giggly Squad Co-host)
Bed Can I make my site softer?
- [01:05]
Scott R. Anderson
Can I make my site firmer? Can we sleep cooler?
- [01:09]
Sleep Number Advertiser
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- [01:35]
Scott R. Anderson
So Anna, I can only assume you have been chased from Washington D.C. by the military forces that have invaded and forcefully evicted, perhaps one step ahead of invading troops like our revolutionary forebears, because you are in new surroundings. They're very stylish surroundings. I have to say I feel like you're hitting I think I see a very forward looking modernist lighting fixture over your head. You've got a brick wall, you've got some minimalist kitchen appliances. I think I see a stripe of marble coming behind you. You are hitting every architectural element a millennial dreams of these days. Where are you coming to us from?
- [02:08]
Anna Bauer
Yeah, thanks, Scott. This is in my sublet in New York. I recently moved up here for the summer and then probably much longer as well. So I can't claim credit for any of the design features in the background because it's obviously the people who own my apartment did all that. But I can claim credit for the little map on the mantel over the fireplace.
- [02:35]
Chris Mirasola
I was going to mention the map. What is the map of? I am like drawn to the map.
- [02:39]
Anna Bauer
Honestly, I don't know. I got it from the farmer's market in D.C. and I just was walking by and I was like, oh, I like green. That looks like a cool antique map. And so I think, I think I got it for like 10 bucks in D.C. on the street.
- [02:53]
Scott R. Anderson
So you've checked to make sure it's not like a battle plan to take over the Rhineland or something you've displayed on your wall. I've gotten some other guys some pictures of some ships have gotten some other guys in trouble lately. You want to sometimes do a little due diligence around that before you put it in back of your video screens.
- [03:07]
Anna Bauer
I need to get some more. I think now that I have this map, I need to find some new art. And it looks like I'm trying to figure out the art in the background of all of your, like, backgrounds here, and I just can't tell. Oh, I do see, there's a Chicago poster. Scott, I can't tell what yours is. And Chris.
- [03:28]
Chris Mirasola
Capitol building, I think. Scott, it is.
- [03:29]
Scott R. Anderson
It is a very generic picture of the Capitol building that I think is obligatory handed to all Brookings Institution fellows in government studies. You get one branch and you get the building associated with that branch. And I got the Capitol building, for better or for worse. I do have this, actually, which I haven't hung yet, which is very cool, which is a picture of the holy city in the old city in Jerusalem, the holy city from 1905 that I got a print of when I was in Jerusalem a couple years ago. But I haven't. I lost my hammer, so I haven't gotten to hang it yet.
- [03:58]
Chris Mirasola
We can send you a hammer. That'll be good. Mine. One is a woodblock print from an artist I found in Xi', an, which is a city in central China. And the other one is a print of George Washington. This is very appropriate to our conversation. George Washington accepting command of the Pennsylvania Militia in advance of responding to the Whiskey Rebellion given by the Chief Counsel to the National Guard Bureau upon my leaving the Defense Department.
- [04:26]
Scott R. Anderson
He just has a stack of those in the trunk of his car, I'm assuming.
- [04:29]
Chris Mirasola
That's right. Handing him out really Specific domestic deployment art is a specialty of mine now, apparently.
- [04:36]
Anna Bauer
Well, you might be able to add some more now that D.C. and LA. You can. I can create a whole Etsy deployment art.
- [04:45]
Chris Mirasola
That's right. It's a whole Etsy store of horrors that we can open up over here.
- [04:50]
Scott R. Anderson
Foreign hello everyone, and welcome back to Rational Security, the podcast. 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. As it is always these days, it's been a big week for national security news. I am thrilled to be joined with an all star panel of my colleagues here at Lawfare to help us make sense of it all. Joining us this week not for the first time by any means. Certainly not for the last time, by any means, although we'll see, but probably not. First up is my fellow senior editor, Anna Bauer. Thank you for joining us, Anna.
- [05:28]
Anna Bauer
Happy to be here.
- [05:29]
Scott R. Anderson
Also joining us is our contributing editor, a professor at the University of Houston Law Center, Chris Mirasola. Chris, thank you for joining us.
- [05:35]
Chris Mirasola
It's great to be here.
- [05:36]
Scott R. Anderson
And joining us for his debut here on Rational Security, lawfare's own legal fellow and Harvard Law School scholar extraordinary Mikhailo Soldadenko. Mikhailo, thank you for joining us so much on the podcast.
- [05:48]
Mikhailo Soldadenko
It's great to be here.
- [05:50]
Scott R. Anderson
Well, we have a lot going on in the news, so let's not waste any time. Let's get to it. Our topics for this week Topic one Wings and a Prayer the Ukraine conflict has been the subject of intense shuttle diplomacy over the past week as President Trump and Russian President Vladimir Putin flew to a meeting in Alaska last Friday, only for Ukrainian President Volodymyr Zelensky and a cadre of European leaders to follow up by flying to Washington, D.C. to meet with Trump yesterday at the White House. What do we know about their conversations and could this be a turning point in the conflict? Topic 2 Capital offense it's been more than a week since President Trump has chosen to make law enforcement in Washington, D.C. a city he has derided as taken over by violent gangs and bloodthirsty criminals, President company Not Included a national priority by deploying hundreds of National Guard personnel and federal law enforcement officers to the streets and seeking to assert federal control over the police department in ways that have triggered at least one legal challenge by the city. What is motivating this major policy effort and where does it seem likely to lead? And topic 3 the EP files I want to believe the Trump administration is reportedly installing a new co deputy director at the FBI in part because of controversy the current incumbent, former right wing radio host Dan Bugino, has courted relating to the release of the so called Epstein files. And it's all indicative of a much bigger set of problems that these files and the potential that they may say something about President Trump's relationship with the notorious sex offender for whom they are named are causing the Trump administration. What's driving this rare point of dissent among the president's core supporters and what ramifications could it have for his administration and for our justice system? So for our first topic, Mikhailo, I want to start with you because you have been following these negotiations incredibly closely as you've been following negotiations regarding Russia, Ukraine, the Ukraine conflict very closely for years at this point, you've written some of our closest readings and watches of some of the agreements and some of the other arrangements and negotiations that have gone on here at Lawfare. And this most recent set of engagements is kind of strikes me as different in tenor. Interesting. There's a little bit more of a less of a zero sum engagement from the different parties. There seems to be at least a public expression of an interest of hitting some sort of agreement at least. Certainly the Trump administration is pushing in that direction. So talk to us about what we've seen the Trump administration do over the past few weeks that has led up to this last week. A very intense, quickly put together, quickly executed set of negotiations between a number of the world leaders involved, not just the presidents of Russia and Ukraine, but also of a number of European countries.
- [08:24]
Mikhailo Soldadenko
So just to explain the context for this change of events, so there were negotiations between Ukraine and Russia in Istanbul and there was a deadlock there. Russians were not making any meaningful concessions. And as a condition for ceasefire, they were demanding the removal of Ukrainian forces from three oblasts, Donetsk, Luhansk and Kherson oblasts. And that wasn't acceptable. And even the Trump administration considered that as a not serious approach to negotiations. And in parallel to that, there were continuing drone and missile attacks on Ukraine. And so as Trump said, like when he had a call with Putin, that would be a nice call. And then Melania would tell him, did you watch what happened? There was a strike on a hospital or wherever. And so there was a frustration in the Trump administration. And they blamed the absence of the process in negotiations on Putin. And that contributed to ultimatums of threats. First there was like a 50 days ultimatum. Then there was a reduction of this timeline and there was a threat of secondary sanctions tariffs, including on India for buying Russian oil arrangement for Europeans buying US Weapons for Ukraine. So the Trump, at least in the rhetoric, there was a pressure on Russia, at least in terms of threats. But then the time came to kind of follow up on those threats. And as a last chance for giving negotiations, you know, some room to develop, Vitkov went to Moscow and had a meeting with Putin. After that meeting, media reported that Russians somewhat softened the position and how that happened. So we know for sure that they now say, okay, not three oblasts, but one oblast, remove your forces from the Donbass, from the Donetsk oblast and will do a ceasefire. And, you know, it's unclear what they promised to do in return. It's likely that they said there are like small parts in Sumy and Kharkiv region that they're ready to evacuate, but that's like just relatively smaller to what they are demanding from Ukraine. But there was also information that maybe they would remove their forces from Kherson and Zaporizhzhia Oblast, but that didn't prove to be the case. But then this technical softening contributed to the Alaska summit, and reportedly Putin asked for it. And there was a meeting in Alaska during which there were three main takeaways in addition to Russian territorial demands. Russian territorial demand, that's one. Two others security guarantees for the first time. And so the US Administration on the record said that they are open to consider and not NATO Article 5, like wording with Russian agreement, and Russians reportedly agreed to it. If you want to discuss, we can go into details why that's not a novelty from the Russian side. Because they main demand non NATO, but that's a novelty that this is like the first time. So the Biden administration was reluctant to do that in 2022 and the first time when at least there was some suggestion that that may be on the table. So that's first. And second, there was a change of strategy. So the prior strategy was that the Trump administration supported we do ceasefire first, then we start discussing political questions. And maybe if our listeners remember, during the disastrous office meeting in February, Zelensky was begging for security guarantees before the ceasefire. But under Trump pressure, he kind of said, okay, let's do unconditional ceasefire. And so right now, we are kind of. So Russians didn't want to do a ceasefire because they wanted to air their political demands. And so right now, the Trump administration changed the course and said that, okay, ceasefire is not that necessary. It's fragile. Let's do and discuss political questions. So some journalists made a conclusion that this is Trump administration adopting the Putin strategy. That is more complicated than that because, yeah, they can air their demands, but it's an opportunity for Ukraine to discuss the security guarantees first. Because you can imagine a situation where we have a ceasefire. Everybody forgets there are no hostilities, but there is rearming, regrouping on the Russian side and there is no security infrastructure in place. So that's not necessarily a bad development for Ukraine. But then. So after that, so Trump briefed Europeans and President Zelensky about that, invited him and Europeans to the White House. They had a meeting. It was good. There was no repetition of the disastrous argument in February. And so right now, so one of the main issues that they discussed is the security guarantees and what Europeans are ready to do. And it seems to be there are two elements. First is like, how can you support the Ukrainian army own capabilities? And what other states can do? Would there be NATO Article 5 like, warning? And they agreed that the territorial questions would be discussed between Zelenskyy and Putin during the bilateral summit, and after that, Trump would later join them. And so right now there are discussions on two tracks. What would be the security guarantee strategy from Ukraine and Western partners, and whether there will be a summit, because debate started where to organize it in Hungary, whether to organize in Switzerland. Some Russian sources said that they want to organize it in Moscow, which is. I mean, that's crazy, but that's where we are right now.
- [15:22]
Anna Bauer
Yeah. So I'm curious where things stand with kind of who is taking the lead within the Trump administration after all of this over the past week, week and a half. My understanding was that it previously was Steve Witkoff, who was kind of one of the main negotiators for the United States, rather than Keith Kellogg, the special envoy for Ukraine, or, you know, Marco Rubio, the Secretary of State. But there were, you know, these reports about Wyckoff having some miscommunications with the Russians in the lead up to the Alaska summit. So, like, what do we know exactly about kind of coming out of this meeting with the European leaders and going forward, will there be a shakeup in terms of who is the point person for the Trump administration? What. What do we know about where things stand with all of that?
- [16:18]
Mikhailo Soldadenko
So I think we can only judge based on the reporting. And there is a limit to dynamics, like how we can understand the exact dynamics. But there was this, you know, somewhat idiosyncratic setup where you had Keith Kellogg as a special in boy speaking with Ukrainians and Europeans and having one strategy which is more like, you know, potential presence of troops, ceasefire without Ukraine abandoning NATO aspirations, sort of like Korean armistice, like outcome. And there was Vitkov, who would communicate with Russians, and there would be more inclination toward the absence of the Western presence. Security guarantees, but not to potential security guarantees, as Witkov said, but without close connection to NATO. And there were two different strategies and two different communicators. And there was a request from the Russian side not to have Kalak during the Alaska summit because reportedly they said he's too pro Ukrainian. And at the end of the day, I think it's unclear who is taking the lead. I think during the Oval Office meeting, they both participated. And obviously Marco Rubio participated. It's unclear how would it look like. But it's important to acknowledge that the security guarantee idea is Something that Witkoff right now is airing and saying on cnn. It depends on details, but this is something that resulted in the interest on the Ukrainian side because this is something that Zelenskyy was asking for for many years. And there is, if you watch the press conference with Trump, Zelensky and Europeans, there is a disagreement between Europeans, how the security guarantees would look like. So, for example, Italian Prime Minister Meloni, she says that would be article like 5 warning, which is closer to Vidkov. And then you have President Macron and Keir Starmer saying we are coalition of the willing. We want to have presence of forces in Ukraine, which is again, more of like Kellogg suggested in the past. So it's still up for grabs.
- [19:03]
Scott R. Anderson
So there's kind of two big friction points, it seems to me. I mean, there's a lot of little ones, but there's two big ones, right? And that's the concessions that Ukrainians and Russians are going to have to make if you're going to get to some sort of negotiated solution on this. And notably, like any sort of that outcome, like that is probably ways down the line, but you at least need to have some sort of vision of process to keep negotiations ongoing. And that's one about territorial concessions and control and the other about security guarantees and the whole universe of what that means, not just security guarantees of the kind of treaty variety, maybe troop presence, security assistance, a whole range of things to make Ukraine feel more secure. So let's dig into each of those a little bit. Mikhailo, I kind of want to think about where we can, to extent you can get out of a zero sum formula for either of those. Let's start with territorial because in a lot of ways that's, that's harder. We know Ukraine has provision of its constitution. President Zelensky very credibly says these severely constrain my ability to make really hard territorial concessions. We know the Trump administration has previously floated the idea of recognizing Russian control, de facto control over areas under its control, particularly Donetsk and Luhansk, in prior negotiations, although that was a while ago now. And the Trump administration may or may not have moved on from that idea or, or not. But that was something they floated back around the time of the first Zelenskyy meeting. I think it's aftermath, if I recall correctly. Talk to us about where there may be space to give around that issue. I mean, if the two parties come together in the Zelenskyy Putin meeting and immediately say there's absolutely no daylight between us, no way we can see any progression moving towards any sort of negotiate solution. A, the negotiations may end right there, and. And B, Trump is probably going to be frustrated, and he's probably most frustrated, it seems to me, with the party that draws the sharp red line first. Both Putin and Zelenskyy and Europeans all seem to be leaning in the direction of. They at least want to make President Trump think they're not the intransigent party and to stay on his good side because he seems more inclined to put pressure on the other side. So is there a gray area, Is there a space where we might be able to see the two parties move in a direction where you could at least get an agreement to a ceasefire, pause on hostilities, even if it's not a permanent resolution of the status of these territories?
- [21:31]
Mikhailo Soldadenko
So I think it's important to clarify that the request, the demand to pull out forces from Donbass, it's not a precondition for a peace deal as it's framed, it's a precondition for a ceasefire. And in the past, Russians provided two alternatives in their position. One, pulling out forces, or they have a list of demands, of political questions that needs to be discussed. And judging based on prior negotiations, both the Minsk agreements, Minsk ceasefires in 2014, 2015, and Istanbul talks in 2022. The territorial questions, although important, are not the most important. For Russians, that's a secondary question. You can discuss whether Crimea is an exception, but just, you know, a small territory in Donbass, that's not what they are for, and that's not their primary goal. And for Ukraine, that's very painful, because when you remove forces, it means first there are fortifications there, meaning you expose other oblasts, other regions to attacks, and there are people there. So even, like, the most optimistic scenario that, like Vitkov reportedly understood that they would, you know, remove their forces from Zaporizhzhia and Kherson and we would remove forces from Donetsk. That would mean. That would still be painful because it means that you are living territory, living people, and you'd be like, I'm imagining my, like, town and, like, native town in Suma region. And if that was a town that should have been evacuated, I mean, you can say, wow, that's reasonable, because that would end the war. You would get there. But that's like. I mean, this is very sensitive. That's why the going to political questions, in my judgment, allow you to do horse trading. Same and judging based on the prior history. And in istanbul talks in 2022, in exchange for Ukraine abandoning NATO aspirations, Russians were At least in words, they were ready to soften their territorial questions. So that's where you can say if we can have a security guarantee outside NATO, we are closing door to NATO, but we have a robust security architecture. We are ready to discuss that on the condition that you stop claiming territorial questions. And I think so. That's an opportunity, that's an opening. But again, whether President Zelensky and the Europeans would go there. Because when you speak about non alignment and neutrality, that means if there is Russian attack on, God forbid the Baltics, neutrality means that robust Ukrainian army that you support, it would not enter the war. You would need to rely on Poland, you would need to rely on the US you would need to rely on British. And I think this is an important variable in the European calculus. Even though, even though I think the mere fact that even if you don't have Ukraine, you know, so to speak, close de facto, what some people call de facto member of NATO, it's still, you deny this territory to Russians, you still have a deterrence, you still have a robust Ukrainian army and you can still, you know, enhance your deterrence within NATO. So that's one of the pathways that I see. I understand that this is not as easy as it seems, but prior negotiations shows that Russians may move forward and remove those demands. It's not guaranteed, but that proposition was not tested.
- [25:56]
Scott R. Anderson
So the other big friction point is the security guarantees prong. Talk to us a little bit about what we are seeing in that regard, what that might look like and what seems Russia may be open to accepting, whether expressly or tacitly willing to swallow, even if they don't formally agree to it, and then what Europeans and Americans may be willing to extend.
- [26:21]
Mikhailo Soldadenko
So to provide context, I want to start with negotiations in 2022, right after the full scale invasion in Istanbul. Russians demanded neutrality. Ukraine came up in those negotiations with the proposal to have NATO like war in security guarantee, even somewhat stronger. So Scott, we had a debate whether that's stronger when a very technical, boring debate, not when they deem necessary, but the measures necessary to protect Ukraine. So that was somewhat stronger. Russians in principle agreed to that on the condition of permanent neutrality. And there were demands. Caps on Ukrainian forces, unacceptable. Also limits on cooperation with the West. But when we are speaking about the security guarantee, they said, okay, so that would be P5 members giving a unilateral commitment, binding commitment to Ukraine, like Belgium got from the Concert of Europe, based on when the UK entered World War I in order to protect Belgium neutrality after it was invaded by Germany. But Russians wanted veto and it remained unclear whether they would remove that demand. But there was a communique agreed where Ukrainian version was there. And according to reports, Russians said that's okay as a framework for negotiations if you go publicly and say that you are going to be neutral. So Ukrainians did that, but Russian they introduced veto demand and it was not clear whether they would remove it. So that was up for grabs. But then there was another hurdle. Western partners were not excited. That would essentially mean a binding commitment not to have Ukraine into NATO because if you agree to such a guarantee, that means Ukraine, the NATO question is outside because that's neutrality guarantee. And second, it was not comfortable to put credibility on the line. I think then this idea of that sort of framework, it appears that this is something that Vitkov and Putin discussed in the Kremlin. So probably Kremlin introduced that idea at some point. And obviously Vitkov in the past said that he likes Istanbul drafts, but this time he just said NATO like worrying. And when asked by CNN reporter whether that's attack on one and attack on all, he said no, but similar wording, which means this is not alliance but neutrality guarantee. This is my interpretation of what was discussed. But then you see this contradicts to Kallak and some Europeans coalition of the willing part where we want to have door to NATO open, we want Western presence in Ukraine, that that would be more credible than just, you know, a piece of paper saying that we would come to your aid. And so that's what it is right now. But and the novelty here, it's important to understand is not that the Kremlin entertained that idea. They were kind of, you know, and they will ask for veto. It's, it's unclear how that will proceed. But the novelty here is that the Trump administration signaled that they are potentially, again based on their words, are ready to consider that idea. And I personally think that's a good development for Ukraine. But you cannot just rely on a piece of paper that Ukrainian army should still be strong because without it, it's just like, what if Russia tries to test, can we then rely on those guarantors coming or coming in time? That's why Ukraine insists on two parts strong, robust army with the Western assistance and help and a second security guarantees. And I think that the army part is just like absolutely necessary because, you know, I would just like, it's good that those two concepts, they reinforce each other. But I mean, I would not be even comfortable being in NATO bordering in Russia without any military.
- [31:09]
Chris Mirasola
This is really interesting, because I was mean to ask you. We saw news, you know, we're recording On Tuesday the 19th that just saw news about Trump kind of discounting the idea of having a US Military presence in Ukraine as part of the security guarantee, which made me wonder what role we might expect the US to play into that second part of the equation that you were just talking about. Because it seems like it's. I mean, everything sounds like it's really up in the air, but this seems like it would be a really important part of what that framework could look like.
- [31:50]
Mikhailo Soldadenko
So based on what Vitkov said and how the unilateral commitment to a neutral state works, so the UK didn't have its army in Belgium. It just issued a security guarantee that if your neutrality is violated or you attacked, your de facto outside alliance will come to your aid with our military force. So that's basically without military infrastructure backing on the ground. It's not career like security guarantee. That's why it's important to have an armed part where Ukraine will have its own army. And the idea of that guarantee that something, if the US Is ready for that, the main value in it would be. So when push comes to shove and the US doesn't act, that would be a credibility loss. And that should be in the calculus of policymakers because the wording is the same. And then you would have South Korea concerned. I think that's why in 2022, the west was uncomfortable, because you are committing to something. And then when push comes to show, you may lose credibility. And I think people. People care about that.
- [33:11]
Chris Mirasola
Okay, so focusing on that kind of deterrence section, that's interesting. Yeah.
- [33:14]
Scott R. Anderson
How does out of curiosity, you know, in my mind, the. Of the. I think the two prongs you describe a Ukrainian inherent military capacity, security commitments from external powers are two prongs. But the third prong is this foreign soldier contingent, or at least I kind of think of it that way, or something that straddles the two. And it's kind of interesting because it sounds like, well, correct me if I'm wrong, you think that that's maybe less important from the Ukrainian perspective, which is a little bit of a departure from how we've seen other US Treaty allies actually envision US Troop presence, where the presence of US Troops at least. And I suspect this is similar in the European context. So I'd have to think about it to confirm. And is actually seen as a much more, well, as a guarantor of effective security guarantees, in some cases even more effective than a Treaty commitment for the simple reason that when you have troops located somewhere, engaged, co. Located with local forces and engaged in exercise with them, coordinating with them, you practically cannot attack that state without putting those soldiers at risk. And that creates both a political imperative to defend them, political skin in the game for the kind of guaranteeing state, the United States or Europe in this case. And then frankly, from a US Constitutional law perspective, a legal argument, be able to pursue military force against them. So everything from Taiwan, Korea, Philippines, variety contexts in the Middle east, that's actually a big part of the formula. The US True presence is seen as part of the guarantee. Do you think that's less true whether it's Americans or Europeans? Less true for the Ukrainians, or are they willing to compromise that or are you folding that into one of your two prongs?
- [34:50]
Mikhailo Soldadenko
No, I actually, I actually think in an ideal world that would be the best outcome where you have also the military presence. I'm just like. So as Chris mentioned, Trump said there would be no U.S. troops on the ground, that that means there would be some European presence. And again, like European presence for what? What would be the rules of engagement, where they would be located? Would they be located in western Ukraine? What would they do if Russia attacks? Would they fight or would they evacuate in advance? So I think that's very important because some, at least in the past, some Europeans were ready to put some limited troops, but not to give written security guarantees. But I mean, if you are put in troops and you are ready to fight, then it should be with a written commitment. Right. So it should be both. So in an ideal world, I agree with you, Scott, that this should be both. But there is another hurdle. If we are talking about classical neutrality, neutrality law is notoriously uncertain, but, and.
- [36:07]
Scott R. Anderson
Some would say outdated substantially.
- [36:09]
Mikhailo Soldadenko
There might be questions whether permanent military bases on your territory can be reconciled with neutrality. Yeah, it can be like. It can be agreed. It can be agreed. But that's like. So Russians, obviously, I'm not that concerned what they are demanding, but in terms of the negotiations and you discuss what we can achieve, that's one of their demands, not to have Western troops. And for example, let's imagine so if that would come down. And again, I think Ukraine and the European partners, they hope that they could avoid the neutrality scenario and have the door to NATO open. But let's imagine that if the neutrality question is discussed. So if with neutrality you have European troops and let's say Russia attacks the Baltics, what is the chance that Ukraine would be neutral in this conflict? When you have the European troops, yeah, technically they can evacuate, but if there are like permanent military bases. So I think that's why, you know, in the ideal world, I agree with you in terms of, you know, minimal requirements, I think the Ukrainian army is just like the bare minimum. And it's good if it would be supported by security guarantees and if there would be some present, that would be great.
- [37:41]
Scott R. Anderson
Well, something tells me we are going to have opportunity to revisit this topic in the weeks to come, because there's a lot of ways this can go. But it is a really interesting set of developments over these last couple weeks. I think some of the more interesting ones we've seen in these negotiations particularly happening at this high level. So, Mikayla, thank you for helping bring us up to speed on that. But as we have a few other topics we need to discuss today before the end of this week's episode, let us go to our next topic involving another difficult questions of military occupation to some extent here in our very own Washington, D.C. on Massachusetts Avenue. As I look outside my office window, and that is, of course, we are now in week two officially of the federal takeover, to some extent in certain ways, of the policing situation here in Washington, D.C. we have a stalled effort to assert federal control over the Metropolitan Police department here in D.C. although there is certainly MPD is being used in ways at the direction of the White House, even if they're not exercising direct control, as they briefly attempted earlier this week. And folks who have listened to our law for a live discussion with Chris and myself and a few others from last week will be familiar with the litigation that's been unrolling around that. We have maybe not unprecedented, but substantial boost in the numbers of federal law enforcement officers here on the streets of Washington, D.C. doing some unprecedented things like helping very drunk people, people on U Street, get medical attention as a YouTube video rolled out in the past few days. Not what you would normally expect to see, you know, 15 Secret Service and ATF officers doing. But that's how a few of them spent their Saturday night this past week, out at 2 in the morning in one of the big nightlife districts here in Washington, D.C. and then most notably, you have National Guard troops, originally just D.C. national Guard troops mobilized under the president's authority over National Guard. But now we are seeing a number of other states, Republican governor states, lending their own troops a couple hundred at a time to come to Washington, D.C. to assist with this policing effort. So let's start there, Chris, because this is the newest development since the Last time you have come to talk to us in lawfare podcast land. Although we haven't talked about this topic here on national security, this is a new one. We see this happen before though. This is exactly what happened in 2020. A bunch of states contributed National Guard troops to this contingent there. It was being done under a Title 32 U.S. legal authority that basically said governors can lend their soldiers or volunteer their National Guardsmen still under the Governor's control to the federal government for drills, exercises and other duties. Something along that effect fairly open ended discussion or open ended assignment of authority. Do we know is that. I think it's 502F as I recall, 32 USC 502F. Is that what we understand is being used again for these new troop contingents or is something else happening?
- [40:28]
Chris Mirasola
Yeah. Great. So two things that are happening here. You're absolutely correct that the mobilization authority that's being used is section 502F. Totally correct. And you're also right that this is what was used when National Guard were deployed to D.C. during the Black Lives Matter movement. So that's the mobilization authority. Right. And it's a particularly important mobilization authority because since those National Guard remain under the command and control of their governor, they're not subject to the Posse Comitatus act. Right? So they're not part of the federal military. The substantive authorization for their mission, though it appears from the best that I can piece together from White House and other statements, actually goes back to the protective power. This theory of inherent constitutional authority that is at the center of the deployments to la, right, is being used again, because it was also used as the substantive basis for the non DC National Guard mobilization in response to the Black Lives Matter protest is again being used for these outside National Guard who are now being deployed to the city. And so this is an important distinction, right, because the protective power requires some nexus with a protective function and the federal function requires some kind of federal property, federal personnel, federal activity. So initially I would expect these National Guard to remain where we've seen them primarily around them, all right. Kind of again, where they primarily were during the Black Lives Matter protest. That's not to say that the administration couldn't, in the manner that it has in California, deploy these National Guard to accompany ICE agents, for example, on immigration enforcement deployments that are going to be happening potentially more frequently right now, almost certainly more frequently now right across the city. And it's a city with a lot of federal buildings. Right. So there's more room to game. What is already a pretty nebulous theory of inherent presidential authority. But I would expect, at least at first, that a lot of this action is just going to keep on remaining in the center of D.C. for what I imagine are basically PR purposes, though there is again like a lot of room here for even more concerning developments going ahead.
- [42:56]
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- [47:06]
Scott R. Anderson
And that actually gets to a technical aspect of the protective power that is worth drilling in on. And it is. Even as somebody who spent a fair amount of time looking at the stuff, I find myself, I hit a point where I realize there's the limits of my knowledge, maybe the limits of what's knowable for the moment around this, as you said, nebulous kind of legal authority power principle basically says, okay, the president has inherent authority to use the military and other federal resources to defend federal personnel and property. Okay, we get that. And there's questions about, you know, how far does it go defending property? When does that get too close to law enforcement activities? That's coming up in litigation in California, which I want to talk to you about in a second, Anna. But here in D.C. it is strange because it is this territory that has such a unique federal relationship. We have a Metropolitan police department here in D.C. by Dane of act of Congress, not because of any sort of inherent plenary police power that the states have over their own issues reserved to the states. Instead, we have that because Congress has Said, hey, you can have a Metropolitan Police Department, you can have Home Rule, you can have all these things for the last 50 years or so, but the protective power as it's being applied to federal buildings and federal personnel is applied in a way that is implied in spite of the fact there are specific statutes, as you pointed out in your scholarship, you were the person really highlighted. There's a lot of specific statutes that say, here are the ways the President can defend federal property and personnel that don't involve using the National Guard for these purposes or using federal troops for these purposes. So they don't seem to see that kind of preemptive legislation or that legislation as preemptive of the protective power, at least in those contexts. Do we have reason to think it is in DC because in theory, in dc, if you don't view the Home Rule act or whatever act it is that actually authorizes the MPD and says, okay, local forces are going to enforce federal law, are going to enforce the law here, which is inherently federal, even if it is being enforced locally, could they make a similar argument to say, oh, actually no, here, at least in Washington, D.C. not in other parts of the country, but here it's still federal law at a core and the President can enforce it. And Congress, having specifically said, oh, no, that's the MPD's job, doesn't preempt his authority to do so. I wasn't sure whether they were rolling out that argument yet. It sounds like they're not yet, but does that mean they won't or they can?
- [49:22]
Chris Mirasola
I guess this is great, right? So I think a few things. So one is, yes, to my knowledge, they have not rolled out that argument yet. If I had to guess why, I imagine it's for a few reasons. One, because it is out of step with a number of OLC opinions about the protective power that have either been publicly available for a long time or are now publicly available. Because I spent a lot of time at the National Archives and FOIAing OLC during a more hospitable administration. So there are three, really, memos about the protective power that span from 1967 to 1971, and that all of them concern the assertion of this power in dc. None of them assert that the protective power confers a general ability for the President to use the military to protect all of dc. One of them is about protecting foreign embassies, and it's about the general obligation of the United States to protect foreign embassies on U.S. soil. And so it was about protecting a particular foreign Embassy. Two of them had to do with protecting the Pentagon and some other offices in the middle of DC in the face of Vietnam protests. And they were again, focused on those discrete federal properties, federal personnel, active federal functions happening. So there's a lot of past precedent that the executive branch would have to completely overturn to assert this kind of use of the protective power. And then there's just like, you know, if you assert this, and this is like a final point to get on, like a little bit of a soapbox. But I'll promise I'll get off really fast if you take this logic that we should ignore any statutory enactments that have occurred since basically in re Nagel was. Was decided in the 19th century. Right. Then, like, the logical outcome at the end is that, like, we can just ignore all of the statutes that Congress has enacted about D.C. and like, to me, it just kind of exemplifies the relatively unhinged nature of the legal argument here. Right. It's just, it's totally dissociated from the more nuanced, detailed way we think about separation of powers, particularly after Youngstown. Right. It's just like. And you'll never find Youngstown cited in any of the. The executive branches, internal or externally facing documents justifying the protective power, because they can't. Right. And so, yeah, right. I see this as like the, you know, taking their argument and bringing it to its logical extreme, which reveals the really just astonishing breadth of the argument.
- [52:10]
Scott R. Anderson
Being made, I would say. I believe this is what your law review article in the Harvard.
- [52:14]
Chris Mirasola
This is precisely what I'm reading.
- [52:16]
Scott R. Anderson
I want to make sure I'm attributing it to it. I wrote it. I. I read it before. I think all this came up a long time ago. And it's delightful, useful. So a really fun dive into this stuff. But, of course, you're not the only person diving into this stuff. It's actually being argued in court, which is kind of amazing. If all this were not so directly related to my home city and where I live, it would be really, really hot times to be an security lawyer right now, because you're seeing things litigated that I never thought we would see litigated 10 years ago when I was studying this stuff in law school, right out of law school. So, Anna, you were not in court, I don't think, for either of these, but you were listening on court last week to a. Of session, three days, if I recall correctly, of hearings in Newsom v. Trump. This is the litigation around the Los Angeles deployment that is now almost entirely wound up, but nonetheless was the flashpoint a month and a half, two months ago around this question of domestic deployments. And then we had a surprise hearing on Friday in D.C. v. Trump, another round of litigation specifically around one aspect of what's happening, a very narrow aspect, the assertion of federal authority over the federal government. Let's start with that latter one really quickly and we don't need to get into level of depth. You published really, really invaluable blow by blow trial diaries of all these hearings. That is particularly for the California litigation, because the hearing is so much is where the action is happening. And this is really, really invaluable for people who want to understand what's happening in this. But let's at least give people a high level sense of what's happening in the D.C. case. The question there was, you know, at one point, Attorney General Bondi last Thursday said, hey, I'm going to appoint a new police commissioner who's going to assert control over the police department. The city sued to seek a tro, saying, you can't do that. The law says we're obligated to provide you services when the President requests them for federal purposes, but that doesn't mean you get just to take over the police department. Talk to us about how the court approached this question and where we came out on that issue, at least so far.
- [54:15]
Anna Bauer
Yeah, so this was a suit that was filed that went to Judge Anna Reyes in the District of Columbia District Court. We had this emergency hearing on Friday that went on for several hours on this question that deals with Section 740 of the Home Rule act generally. DC, you know, has the ability to kind of do its own local government and enforcement of, of local laws. But as you mentioned, Scott, there's this kind of exception in which the President can, in times of a national emergency request through the mayor, the services of local law enforcement. And so what Bondi did with powers that were delegated to her by the President was to issue this order in which she says, I'm basically appointing a federal officer as the new police commissioner who can direct, you know, the actions of the Metropolitan Police Department. There are also a number of provisions in this order as well that said, you know, certain policies that would otherwise apply to the Metropolitan Police Department, you know, I'm rescinding those orders. So it was all very much kind of in the affirmative of like, we are directing you to do this. There's this new police commissioner who's gonna have all the same powers as the police commissioner. And during this hearing, the way that it kind of worked out was even though Judge Reyes had very much had problems with the semantics of Bondi's order, again, because so much of it was giving direct orders and trying to just. Just install someone as the new leader of the Police Department, she recognized that, you know, the language of the statute made it such that DC Would be obligated to provide certain assistance or services for federal purposes. We didn't get to that federal purposes part of it all because Judge Reyes said that she wanted to hold that off for a week. But insofar as it related to this question of kind of, you know, the semantics of the order, the parties ultimately went to recess and were able to kind of work out a deal for some of the provisions in which those provisions were redrafted. And so where we kind of left it was Judge Reyes saying, all right, I'm going to wait to see if there's a new order from Bondi issued, and if there's not, I'm going to issue a tro, because I do think that this order goes beyond what the act allows. And then about 10 minutes after her deadline that she imposed for when she was going to issue a tro, DOJ filed a new order and informed the court that Bondi had rescinded that previous order. And the new order, essentially, instead of purporting to install a federal official as the new police commissioner in D.C. it instead installs him as the, like federal liaison who's the person that is gonna ask for assistance as directed, you know, through the president or doj, and as the person who, you know, is kind of this liaison, as opposed to the police commission having the powers of the police commissioner. So it's a more indirect way of exerting control and power over the police department. And then the way they handled this kind of, oh, we're rescinding these local policies that apply to the police department. They instead said, we are directing assistance in regard to immigration matters notwithstanding certain provisions that apply to the police department regarding immigration enforcement. So it was, again, a kind of semantic difference as opposed to a real substantive difference. And subsequently, what happened is that DC Withdrew their motion for a temporary restraining order because that previous order was rescinded. They have since said that they are evaluating the new order. So it's unclear, really. You know, obviously, this suit overall that has been filed is still active and is still pending. But with respect to whether or not DC Is going to move forward to seek a temporary restraining order for this new order, however, it's kind of Unclear, because they've said that they're evaluating the language of that order.
- [59:02]
Scott R. Anderson
It's a really interesting posture. We should know this all under Judge Reyes, who is, you know, the administration has filed an ethics complaint over for hostile and egregious conduct, but exercised some fairly deft diplomacy around this to try and get some agreement between the parties. She also actually complimented the DOJ lawyer for how well he handled it. Judging from your notes, Anna, which I think that was really particularly notable. She asked whether he or she had just gotten it that day. And when they replied yes, she said, really well done, good job. After their initial argument, which was notable, a very friendly move, so perhaps not quite as egregious and hostile as initially framed, at least in all cases. It's a really interesting posture and it reflects kind of the way the city seems to be handling it, which is Mayor Bowser, her approach really has been, we're going to cooperate with this. We're not saying we agree with it, we're not saying it's warranted. We're going to cooperate. We think it's legally obligated. But they chose this spot to take a stand on and they kind of got a victory out of it because even though they may have provide these services, the one thing they aren't doing is conceding the ability to fire police personnel, install new personnel policies, or do other things that will last past the 30 day period where this takeover is allowed to be sustained without further action from Congress, which would be a pretty tall order because you would need to get 60 votes in the Senate. So that's one round of litigation. I want to dig a little bit into the California litigation too, because it bears so much foundationally on this protective principle idea that underlies both the LA deployments and the DC deployments foundationally. Talk to us a little bit what you saw there, Anna. And then, Chris, I want to come to you to get your reaction to this litigation, which I'm sure you've been following, how much you feel like the court's actually getting at the contours of this protective principle. And then what might come out of it, that in terms of a court actually passing judgment on this principle, really for the first time that we've seen, to my knowledge, at least.
- [60:44]
Anna Bauer
Yeah. So, Scott, the Newsom vs Trump trial is the one that took place earlier in the week before that hearing before Judge reyes related to D.C. and this one relates to the deployment of troops in Southern California. And in its current posture, the issue that that was at issue during the the trial has to do with whether or not the deployment violated the Posse Comitatus act, which is a statute that prohibits the use of the military for domestic law enforcement purposes. And, you know, it was a three day trial. There are witness of which were people who were people in positions of command or positions of power within the military overseeing the deployment of Marines and National Guardsmen. One of them also was an ICE field director in la. So a lot of the evidentiary portion of the trial focused on kind of what exactly were the troops doing. Two of the major things that came out during this trial related to detention of civilians. There were two examples of that in which federal military forces detained civilians. There were examples of military members accompanying ICE on at large operations. There's examples of the military making traffic perimeters or traffic blockades. So a number of different things were discussed in terms of the facts during that evidentiary portion. And we had a longer conversation about this on Trump trials and tribulation. So I direct people who are interested in hearing a little bit more in detail to that conversation. But in terms of the kind of overarching legal questions at issue, I would say that again, you know, as we've discussed, the scope of the protective power is one of them, because the government, one of its arguments is that everything that it was doing was to protect federal property or federal personnel, and that that's an exception to the Posse Comitatus Act. And then another big issue and, and there are more. And again, we get into this in more detail on, on our Lawfare Live on Friday. But another big issue is the question of, of is there a civil action that you can bring when the Posse Comitatus act is a criminal statute? And so that is one of, I think the really big looming questions over all of this litigation is how is it that the state of California can now go to court and seek injunctive relief by claiming that there were these violations of a criminal statute? There's not really an answer that courts have given on this question, although there are some courts that have discussed it. It's certainly a very unsettled area of law. And I think that Chris is the expert who can talk to us more about that. But one of the issues that came up again and again at trial was this question of whether there is a civil cause of action. And then also given the immunity decision from the Supreme Court, Supreme Court, is there even any remedy essentially ever for Posse Comitatus act violations? Because the person who's the commander in chief, the president, presumably would have immunity for directing Actions that would violate the Posse Comitatus Act. And then if you don't have a civil remedy, you essentially have no remedy whatsoever. And so these are some of the, you know, big questions, but there are other issues that were raised. But, Chris, I'm curious for your thoughts on all of it.
- [64:43]
Chris Mirasola
Yeah, it's like you said, there are so many different arguments that we could be focusing on in the discussion. I think my baseline takeaway is this. I have been glad to see how the court has engaged with the question about what constitutes a violation of the pca. The law of domestic military deployments is broken, you know, three ways to Sunday. This is one of the ways in which it is broken. There have been three different articulations about what the PCA prohibits across different circuits, across time. The executive branch tries to use all three of them in more normal times, but it's an absolute mess. And so it's always a good thing when courts are getting into the details of, like, this kind of an act, because I think there's an opportunity for some clarity. It's a good opportunity to assert what I think must, must be true, which is that the PCA applies even when this idea of the protective power is being invoked by the president in almost every other regard. I've been quite frustrated by the litigation because I think that the core practical problem is one that you just talked about, which is like, what is our civil remedy here when the executive branch is not bringing any criminal cases under the pca? Right. Because historically it also just happened. Hasn't. Right. Perhaps unsurprisingly, it's very odd to make criminal law which the executive branch is going to enforce. The check against the executive branch. And it's, it's. It's not clear to me that, especially when this gets to appeal, that we're going to get a decision that says that there is any kind of meaningful civil remedy here? And so then if that's true, what we should really be focusing on is whether the action itself was ultra virus. Right. Like whether there was whether the protective power itself provides no foundation for a domestic military deployment. And I found the briefing from both the executive branch and from California to be, like, really underwhelming on this point because the executive branch is making arguments that go even beyond the extraordinary assertions of authority that you see in internal documents historically. Right. Basically saying that the protective power has been blessed off already by the Supreme Court in cases like in Renee Nagel, when the executive branch repeatedly, in its own internal documents has called those relevant portions of in Rey nagel dicta. Right. So going like, way beyond what they've asserted in the past has been true. And then like California, to my mind at least, insufficiently attacking this assertion for all of the reasons that we've discussed so far. Because if you don't focus on that, then you have to get in the weeds about this, like, civil remedy stuff. Right. And I have real concerns about how that's going to fare on appeal. There's also, I think, been really distracting focus on the mobilization authority that's been used. And a lot of that distraction has been because the executive branch has, I think, implausibly asserted that it that the mobilization authority, this is section 12406 of title 10 is itself an exception to the Posse Comitatus Act. And I should probably maybe write something at some point that explains why I think that that can't possibly be correct. But one of the reasons it can't possibly be correct is that the executive branch has never understood it to be an exception to the Posse Comitatus act or authorize anything other than getting someone onto Title 10 duties. And so to my mind, we're spending a lot of time in this litigation on things that I think are going to be really difficult to, you know, that are going to have a hard time on appeal or like, like are just a really significant misconstruction of statutory authority.
- [68:26]
Scott R. Anderson
Well, let me push back on one part of that, Chris, or inquire about it deeper because there is one context where I believe the PCA has been in force and that's usually as a defense in criminal matters, including application of the exclusionary rule. Right. And I know there's at least one case in the Ninth Circuit within the last 10 or 12 years where they, I think, ultimately determined there was not enough pressure prejudice to warrant invocation of the exclusionary rule. But they did say the PCA can be basis for applying the exclusionary rule.
- [68:52]
Chris Mirasola
Right.
- [68:52]
Scott R. Anderson
Exclusionary rule, product of the fourth Amendment says essentially meant to insulate against unlawful searches and seizures. To me, it strikes me as that if you're accepting that premise and the ninth Circuit, I mean the district court appears bound by that premise by the ninth Circuit. Maybe the Supreme Court will disagree at some point we're enblocking 9th Circuit, but right now, okay, we have. I actually think it was an en blank decision. So except the Supreme Court overrules that. Ninth Circuit's on board with that. I'm not sure why that doesn't get to the idea that many of the applications of this Police action or this military action under the protective principle or whatever. Actually, if there is no PCA exception, would actually trigger that same bar. And that same bar, of course, we are used to it. The exclusionary rule being the context of saying, hey, evidence collected, action taken against individual, we can't hold this against them. But search and seizure isn't just about collecting evidence. It is a bar on physical possession as well. So I'm not sure why you couldn't say, like, if you were somebody being detained by troops and you could get the courts to act fast enough, I think you could make the exact same argument to say, hey, you can't detain me because search and seizure, Fourth amendment, search and seizure in violation. Well, California, I'm not sure why they couldn't sue under a parent's patria theory and say upon our nationals who are clearly being affected by it, they can invoke that same sort of claim. Like, you know, that gets into complicated standing questions. And like, parents Pondrie has like some weird applications in the state context, but I don't think they're prohibitive here. So I guess I don't. I don't see this as being. There clearly is enforcement mechanism for the PCA that at least up to the one below the Supreme Court, many circuit courts have signed off on. So, like, I'm not sure why that doesn't actually get us around that issue here. Even if it doesn't mean that you can't stop the deployment of the troops, it doesn't mean you could stop them from doing any of the things that they're actually wanting to do or severely complicated, you know.
- [70:42]
Chris Mirasola
Yeah, no, this is great. Right. So totally agree. Right. That courts have used the pca. Right. As a means for excluding evidence. Right. And that's usually in like, deportation, criminal deportation proceedings and things.
- [70:56]
Scott R. Anderson
Not that often, but it's been kind of all over different courts around.
- [70:58]
Chris Mirasola
Well, I mean, actually, it's interesting. Right. So you're right. So, like, there are very few circuit court decisions.
- [71:02]
Scott R. Anderson
Very court decisions. Yeah.
- [71:03]
Chris Mirasola
But like, happens really frequently at the district court level. Right. So, like, if you go into the district court decisions in the ninth Circuit in particular, because this is the only circuit where we. I'm not sure if it's on the circuit, but it's the most predominant circuit where this comes up. Because a lot of the border crossings also are in the 9th Circuit in any event. Right. We see a lot of this work happening at the district court level. Most of it fails. And so my first concern is a substantive one. Right. Which is that although the general principle has been asserted in practice, it often hasn't helped. And maybe that's an oddity of the deportation kind of proceeding kind of context. And I think there's a good case to think that that might be true and maybe it will be different in this context. But that's like the first substantive concern that I would have. The second is that although the logic resonates, I'm not convinced that the present en banc 9th Circuit or the Supreme Court where this would inevitably go Right. If the en banc 9th Circuit were to adopt this line of reasoning for enforcing the pca, whether this theory would stand up there. And I would actually have concerns that perhaps even the evidentiary exclusionary kind of rule might not fare particularly well. I'm just very pessimistic about what happens when these kind of things get to the Supreme Court because if I had to imagine what a majority of the Supreme Court justices would say, they would say something to the effect of this is a criminal standard statute with a criminal regime and Congress has had a hundred odd years, 160 years to provide a more robust protection. And it hasn't. And so it's really that concern about where this goes on appeal that gets at my frustration. I totally take your point that the underlying logic. Right. I think would be easily transferable to the kind of civil remedy that they're talking about now.
- [72:58]
Scott R. Anderson
Well, we are going to see a decision in that case and we will probably have opportunity to revisit it again. We are out of time Today we have a third topic to get to, a topic that the whole country is lit aflame in considering, and that is this question of the Epstein files. And I don't really want to talk about the Epstein files because the truth is nobody knows what the heck these things are. And I suspect it's not very much. Almost certainly that is like my strong, strong prejudiced assumption, but no one else seems to feel that way or believe that. And this is an issue that we've seen completely rip the Trump administration apart in very weird ways. Not just the Trump administration or even primarily, actually more like the mega coalition and support base like President Trump's core supporters is the issue where he has the highest rate of disapproval among those core supporters of any policy issue facing the administration over the last month or month and a half. That's pretty remarkable. And it comes down to this idea that they're not disclosing these law enforcement files, that two administrations now, Trump's administration and the Biden's administration, even though when he was on the campaign trail, Trump refused to accept the Biden administration's conclusion that there's not anything in these files that warrants this sort of disclosure that really rises to a level of anything that would warrant any sort of extraordinary effort to move towards releasing them. Anna, I want to come to you on this as you're somebody who watches that fine line between the court and the judicial system and our broader society. So talk to us a little bit like, why does this story have such a grab? What is it about this story that makes it such a weird political time bomb for the administration? It seems, at least by their assessment.
- [74:32]
Anna Bauer
SCOTT Look, I wish that I knew. So I don't have a great answer for you because I do wish that I knew what is it about this story that has staying power? It seems to be the only thing that has ever been something that sticks in Trump's political career. But I will say maybe part of it is that, you know, it's kind of an own goal. Like you have people like Dan Bongino and to some extent Cash Patel, other people who are in the administration who are, you know, these senior officials now who spend spent so much of their career prior to joining the administration creating conspiracy theories about the federal government and in particular about things like the Epstein files and who have called for this radical transparency, who promised, you know, part a big part of Kash Patel's book, for example, is just about how he wants to declassify everything on day one, you know, not in particular in reference to the Epstein files, but you know, everything like you have, you have all of these MAGA figures who for years prior to joining the federal government have been making these big promises about radical transparency, who were stirring the pot on these Epstein conspiracy theories. And then they get into office and suddenly it's a change of trouble. Tune. And so I, you know, and that of course, naturally, when you have a fan base that are people that you've been stirring up about conspiracy theories about the government for years, they're suddenly going to have a conspiracy theory about you covering something up. So I, you know, I think that part of it is that part of it is, you know, that the Epstein story in particular has just been something that, that has captivated culture for years. But I mean, beyond that, I don't know. But what I do know is that it is really interesting to watch how this is playing out because it is even to a point where it's affecting who is being installed in leadership positions. It seems like, I mean, we don't know for sure but most recently after Dan Bongino had to take a full day off because he was so distraught about the way that Pam Bondi was allegedly handled.
- [77:14]
Scott R. Anderson
Mental health days are a totally legitimate way to spend sick leave. We've established this at Lawfare headquarters and we're on your side. Don't worry on this one.
- [77:21]
Anna Bauer
Look, whomst among us who is deputy director of the FBI hasn't had to take a full day off of work because of being distraught about the handling of the Epstein files. But after, you know, he, he has this internal dispute with DOJ leadership apparently as it's been reported in the press now we have news as there's things going on in Congress with additional kind of witnesses going before Congress to talk about the Epstein files. There's reports that on Friday DOJ is going to start handing over information to Congress as this is all kind of getting back. The Epstein issue is being centered in the press. Again we have news that there's going to be a new co deputy director of the FBI. And that's something that as far as I'm aware is totally unprecedented and it raises a lot of questions about, you know, what exactly is going on with Bongino and does it all relate to the Epstein files. But Scott, essentially it's just. I don't know what the answer is. I'm curious for your thoughts, what do you make of it all?
- [78:35]
Scott R. Anderson
It's utterly beguiling to me. Look, it makes me think of another case that I encountered at various points in my career which is. I will not draw parallels between their context. One is a very serious context and this is a still serious, although getting levels of unseriousness at certain points as many ways people talk about these files. But this was the phenomena, the 28 pages, the 911 report. Do you guys remember, remember this about 10 years ago? A little more, a little less than that. This was actually almost exactly 10 years ago now I think about it. This was the kind of 28 pages that were excerpted and classified from the 911 report prepared at 911 attacks, not released publicly because it was deemed essentially to entail a bunch of investigatory leads that were followed. But ultimately the commission concluded they didn't really go anywhere. They didn't lead anything. They didn't think it warrants, warranted inclusion in the report. It was attached as kind of an annex to the end of the report as I recall. But for a decade and a half people absolutely were convinced there was a smoking gun in there about Saudi Arabian involvement in the 911 attacks and a bunch of other things that was fed to by people dealing with very real trauma, dealing with very real desire to come to sign responsibility for this. I think there is a common element there with the Epstein cases. There are people who really suffered gender trauma and are looking for accountability and frustrated by the fact that the person most responsible appears to have killed himself in prison. And their justice system isn't really in a position to deliver that the way they want, but got spun out in litigation, in media accounts. This idea that there was a smoking gun document was finally declassified and released by the Obama administration pretty late in the game in 2016, as I recall. And. And what ultimately came out is that there were a bunch of little facts and representations that people could look to and could support certain narratives and certain thoughts, but many of them were never fully justified. They were never always supported by corroborating evidence. Essentially, it was kind of what the government said it was, which is that it was a bunch of leads and things people pursue, but they didn't think it amounted to anything, and they didn't think it was appropriate to kind of release that information to the public because it didn't draw any analytical conclusions and ended up being something like a hearsay. That's kind of what people are saying about these Epstein files, right? Like the Justice Department is essentially saying, look, there's a bunch of investigatory materials we have, and yeah, people's names pop up, things pop up here and there, but you can't make much of it. And like, if every time somebody went through a criminal investigation, you released every document related to them, everything you possibly collect, it would be A, a huge volume of materials, and B, a bunch of people could be implicated in a particular case because their name pops up, because they happen to do business with them once or happen to know them once, or were social acquaintances with them, didn't know their criminal involvement, and that in this case, there's a risk that that's going to be made hay of and make these people's lives much more difficult. That strikes me as not unreasonable. And the fact that several administrations have reached the same conclusion suggests that it's a very credible one. Doesn't mean there aren't little pieces of facts. Like this revelation the last few weeks about President Trump having been submitted. A very awkward, weird, maybe a little creepy letter to Epstein's birthday binder a few years ago feeds fuel to the fire. But in the end, that's like, one data point it doesn't actually prove Anything. What worries me about this is that you now have people from all across the political spectrum buying into hyping this story because it's politically convenient. Now, you do have Democrats saying, we're going to chase down these files and try and get them released. I really wonder what that does to faith in the institutions of the Justice Department, which it's fair to engage critically. But essentially we actually do need to have some faith in for them to operate and do their jobs a lot of the time. And that here it's not clear to me that we really have a basis for thinking they're doing anything untoward or inappropriate even. We may disagree around their judgment around certain points, but you've got kind of bipartisan buy in to this idea that that's exactly what's happening. Maybe you blame not the Justice Department, maybe you blame political officials, whoever else, but it's politically expedient for enemies of the Trump administration to do this. I get why you're doing it. I get why this focus is kind of spreading beyond the original kind of conspiracy theory community that was so focused on it. But it strikes me as really damaging. I don't know. I think it's very concerning that you're getting to that point, that people are buying into this. And I worry what it's going to mean in the long run. But then again, trust it and lack of trust in public institutions is nothing new and is driving a lot of things around our country at this point.
- [83:07]
Anna Bauer
Yeah. And I mean, there's also, in my view, there's a lot of reasons to distress certain things that the FBI or the DOJ is doing right now. But the issue is just that it doesn't have to do with the Epstein file situation. Right. Like, there's a lot of other norm violative action that DOJ and FBI have taken with respect to investigating political enemies and weaponization of the department that doesn't have to do with the Epstein thing. And people keep talking about how so many things Trump is doing is serving as a distraction from the Epstein stuff. And to some extent I'm like, well, but actually maybe the Epstein stuff is the distraction from the real things that we need to be focusing on that are actually the, like, these are the things that we should be focusing on that really go to the problems that are facing the department and law enforcement in the federal government. So, yeah, it's a tough issue.
- [84:16]
Scott R. Anderson
Well put. Well, I think that is a good point to leave it on because we are out of time for this week. But this, of course, would not Be rational security. If we did not leave you with some object lessons to ponder over in the week to come. Anna, what do you have for us today?
- [84:28]
Anna Bauer
All right, well, Scott, I don't know if you can tell I'm wearing my Taylor Swift or. Actually, it's Jason Kelsey. What does it say? It says, oh, Jason Kelsey. The ERAS tour. It's a. I don't know why I have this, actually. I think I kind of became a bandwagon Kelce Brothers fan when Taylor Swift started dating one of them.
- [84:50]
Scott R. Anderson
I'm a big Jason Kelce fan. Travis. You know, I'm less. I'm. I love Jason Kelsey.
- [84:57]
Anna Bauer
Travis is America's position of centering brought.
- [85:00]
Chris Mirasola
It to new heights?
- [85:01]
Scott R. Anderson
Well, you can't complain about that.
- [85:04]
Anna Bauer
I. Look, I. I do love Jason maybe a little bit more than Travis, but I am happy for Taylor Swift and Travis Kelce. And the reason I am bringing this up is because my object lesson is the episode of the New Heights podcast that premiered, I think it was within the last, like, 10 days, in which Taylor Swift announces her new album, Life of a Showgirl, that's coming out on October 3rd. And I am a longtime Swiftie, Scott, as I think that, you know, and it is a fascinating moment in the life of all Swifties to see this podcast that is like, two hours of Taylor Swift, arguably one of the most. Arguably the most famous pop star in the world, just kind of sitting there next to her, you know, NFL star boyfriend, just talking for two hours. And this is, like, maybe never happened in Taylor Swift's career.
- [86:08]
Scott R. Anderson
Annoyed. Like, any woman would be having to sit next to her boyfriend and his brother as they talk about football for two hours.
- [86:13]
Anna Bauer
No, not annoying annoyed, but like. Like, it's very funny because they're just incredible moments where she's like, yeah, he's never read Hamlet, but I explained it to him, so it's fine. And.
- [86:30]
Scott R. Anderson
I love it. I love it.
- [86:32]
Anna Bauer
And. And at one point, she has to explain to him, like, what esoteric means, although they both decide that he does actually know what esoteric means. So this is why I call him America's Himbo, because he. He seems just to be an incredibly nice man who, like, is very good at football, but maybe does not have the most going on in terms of his other thoughts. But I do love Travis. I do love Jason Kelsey. I do love Taylor Swift, and it's a great podcast episode to listen to, so check it out.
- [87:06]
Scott R. Anderson
Wonderful, wonderful, wonderful recommendations. This is a good way to celebrate the. The onset of NFL season in my mind for Those new to the camp. Chris, what do you have for us this season?
- [87:18]
Chris Mirasola
Yeah, so each time I come on, somehow the conversation turns to parenting things for children. So I thought today I would just do it myself. So my object lesson today is going to Michael's. So I have not gone to Michael's as an adult in a very long time because I am not independently very crafty. But if you are a parent and are at your wit's end with toys, toys and want to find something for your children to do that does not involve something with a battery, Michael's is apparently the heaven that like, I did not know existed for me for a very long time. They have like everything. Like there are these like little, like, like little kits of drawing things. You can get clay that you can make into bowls and you can fire them in the oven. It's like, it's fantastic. Apparently they'll be selling fabrics from Joanne's Fabrics soon as well. So if you want to get your kids into ripping up fabrics that are expensive, you can do that too. Like it's just the possibilities around this. And then you can buy like Halloween decorations like now I was there over the weekend and you can get Halloween decorations now. So Michaels, it's still there and it's great.
- [88:30]
Scott R. Anderson
Wonderful suggestion. I was the child of a very crafty mother. I got a lot out of it. I spent a lot of time in Michaels in my youth. For my object lesson this week, I won't dodge towards parenting. I'm going to talk a little bit about the algorithm, a favorite of Benjamin Wittest, because I got Ben Whittist in my algorithm this week. Or actually specifically my wife. Did you know I'm of an age as a recently anointed 40 year old gentleman. 40 plus year old gentleman. Where like most of my ads now are just pictures of stone fruit split in half with like lettering on them saying, this is why you're dying of cancer. It's very strange and very upsetting. But this is not 90% of my online ads. But regardless, occasionally people push things in the direction of me and my family that apparently we're interested in or they think credibly would be interested in, even though we're definitely not. This happened to my wife who got a online ad for Anthropologie's new fall collection, which is really unique because they are borrowing a fashion page, a page from the Benjamin Wittes fashion book. It is like 90% dog shirts. And I'm not exaggerating, they're like dogs on everything. And it's absolutely absurd and I don't know how Ben is letting this happen without getting it cut. I think anthropology needs to send a donation in the direction of Lawfare ASAP to cover their legal basis on this because it's absolutely astounding all these very fashion forward young women in fall ish fashions, one of them still wearing a bikini. I don't really understand what's going on with that, but with dogs all over them, just pictures of dog faces. So you know, Ben may be onto something sadly for the rest of us that the rest is really to take the world by storm storm. But we'll have to wait and see on that front. In the meantime, Ben, hop over to Anthropologie now. Mikhailo, it is up to you. You are bringing us home. What do you have for your inaugural object lesson this week?
- [90:08]
Mikhailo Soldadenko
So considering that this will be a busy time and Russia, Ukraine War in negotiations for people who would like to understand more context and the real causes of this conflict and why they their strategic and imperial reasons intertwined, I would recommend to watch Timothy Snyder's Ukraine history series on Yale YouTube channel, which is fantastic. A lot of deep insights how different empires were controlling parts of Ukraine and how that influenced today's realities and today's war in Ukraine.
- [90:53]
Scott R. Anderson
Really recommend Phenomenal suggestion. I've actually had someone else recommend that to me so now now it is doubling down on my YouTube watch list along with my cooking videos and music videos. Well, thank you for that Mikayla. Wonderful suggestion. And that of course brings us to the end of this week's episode. But remember, Rational Security is of course a production of Lawfare, so be sure to visit lawfairmedia.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. In addition, be sure to follow Lawfair on social media wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of Lawfare on Patreon. For an ad free version of this podcast and other special benefits. For more information visit lawformedia.org support our audio engineer producer this week was me of me and our music as always was performed by Sophia Yan. We are once again edited by the wonderful Jen Pacha. On behalf of my guests Chris, Anna and Michaelo, I am Scott R. Andersen. We will talk to you next week. Until then, goodbye.
- [91:59]
Paige (Giggly Squad Co-host)
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