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0:33

I share something slightly frustrating for me that is

0:35

a problem I never expected to encounter in what

0:37

is nearly my 40th year of life? Always.

0:39

I seem to have developed a cowlick

0:41

that I can't tackle. Do you

0:44

see that right here? Welcome to my world baby. Welcome

0:46

to the party man. I mean I'm like I've had

0:48

curly hair my whole life and like you know it's

0:50

it's I'm not gonna lie last 10 or 15 years

0:52

has been kind of coming and going depending on the

0:55

miracles of modern science I choose to apply to my

0:57

head. But like this is

0:59

a weird one I don't know what to do

1:01

what is this what is this lock of hair doing

1:03

here? There is a solution to this problem and

1:06

it involves one of those

1:08

guys that goes zzzzzzz and

1:11

just keep it really short and

1:13

there are no cowlicks. Alternatively grow

1:15

it longer because I will say I

1:18

used to have longer hair and when I cut it

1:20

short it turned out that I had multiple cowlick

1:22

so there was kind of a mad

1:25

scientist thing going on. I feel like your hair is always

1:27

very straight and coiffed and like well well straightened but is

1:29

your hair curlier than it looks? It's

1:32

a lot of brill cream that goes into Krita's

1:34

look. I guess I could buy

1:36

a comb but it's like so much. Hello

1:46

everyone and welcome back to

1:48

Rational Security. I am one

1:50

of your regular co-host Scott

1:52

R. Anderson reunited again in

1:54

our virtual studio with my

1:56

two regular co-hosts Quinta Jurassic

1:58

and Alan Rosenstein. Hello,

2:01

hello. For at least a

2:03

few more weeks to come, we are thrilled to

2:05

be joined by, of course, co-host Emeritus Lawfare,

2:09

what is your title? Lawfare Editor-in-Chief and

2:12

our boss, our boss. General Busybody,

2:15

Benjamin Wittes. Ben

2:17

thrilled to have you back on the podcast as we're

2:19

digging into a couple of topics that you've written on

2:21

in the last few weeks here. Excited

2:23

to have you back on the podcast. Good to

2:25

be here. And I

2:28

love that Joe Biden-like tripping

2:30

over your words introduction. There

2:32

you go. That is my usual style. It

2:35

worked for him. It seems to work for

2:37

me. We are honored with a particularly bedecked

2:39

Benjamin Wittes today wearing a shirt with a

2:41

collar on it and not

2:43

even like a straight up dress shirt

2:45

with a collar on it. What is the

2:48

occasion? The occasion is a request

2:50

from a distinguished member

2:52

of the diplomatic corps to

2:55

come to an embassy and

2:57

brief this particular embassy over

2:59

lunch. Oh, excited.

3:02

Well, I'm honored to see

3:04

that you still have dress shirts released on

3:06

that front, at least, that they did not

3:08

go the way. I will assure the readers

3:11

who are in need of assurance on this,

3:13

it is not the Russian embassy that

3:15

I am going to brief from the Trump

3:18

trials. That

3:20

would be an invitation to see. I would worry

3:22

about whether you would accept it. They've got a

3:24

kind of a Saudi embassy certified, unfortunately. So I

3:26

worry about who's coming out once you go. I

3:29

would not go in that building. Yeah.

3:31

Well, regardless, we are thrilled to have you

3:33

here today. Bedeck, however you choose to be,

3:35

for what we are calling the Licking the

3:38

Cow edition in honor of my general's

3:40

tutorial challenges on this particular

3:43

day and a lot of days recently in

3:45

regards to my haircut. But haircut or no,

3:47

we have a lot of big news on

3:49

the National Security Front here this week to

3:51

talk about. Topic one, constitutional

3:54

annoyance. Last week, the

3:56

Supreme Court heard oral arguments in Trump v. Anderson,

3:58

the case weighing whether former... President Trump's involvement in

4:01

January 6th should disqualify him from being able

4:03

to stand as a candidate in 2024 under

4:06

Section 3 of the 14th Amendment, at least in

4:08

Colorado. Scott, Scott, is Donald Trump

4:10

suing you? No, not this

4:12

time. We did sue him once. Remember

4:14

that? That was fun back in the day.

4:16

But I mean, we may get the chance again. But I mean,

4:18

there was a case before the Supreme Court last week called Trump

4:20

v. Anderson, and we

4:23

just had to make sure that it was not

4:25

you that was the respondent. No conflict here.

4:27

It's also worth noting that there was

4:29

another case that came up during oral

4:31

argument with the case title also involved

4:33

in Anderson. So Scott,

4:35

you're just you're all over this. I'm

4:37

all over the place. I'm not gonna

4:39

lie, guys, pretty common name. Jillian, Pamela,

4:41

no relation whatsoever, either with me

4:43

or with other law suits, as far as I could tell. So

4:46

sadly, we are just Anderson's, all

4:49

Anderson's kind of scattered to the

4:51

winds with no direct involvement in

4:53

each other's matters. But this particular

4:55

matter, it was notable that the

4:57

justices for one seemed pretty unified

4:59

in their skepticism of the idea that former President

5:01

Trump should be disqualified under Section Three. But

5:04

they were far less unified in regards to

5:06

what the basis for not disqualifying him should

5:09

be with lots of theories coming out in

5:11

questioning. We are now of course

5:13

waiting for an opinion or other disposition of the final

5:15

case. Where do we think it is headed? And what

5:17

will its ultimate impact be on the 2024 election and

5:20

beyond? Part

5:23

two, putting the hurt on her on parenthesis

5:27

there. Not the her locker.

5:30

I tried to do the hurt locker, but

5:32

I couldn't I couldn't go again. I

5:36

also looked into that. Well, I was

5:38

gonna make a joke about how long the report was because

5:40

then it was like five and a half hours long. But

5:42

that's okay. Putting the

5:44

hurt on is we'll

5:47

have to set rest with this one

5:49

because Special Counsel Robert Herr completed his

5:51

investigation into President Biden's alleged mishandling of

5:53

classified documents last week the same day

5:55

as oral arguments in Trump Anderson, in

5:57

fact. And while he opted not

5:59

to bring any charge charges, his lengthy final

6:01

report has caused a stir, not just for

6:03

laying out Biden's apparent mishandling of classified documents

6:05

over an extended period of time, but also

6:08

for citing Biden's advanced age and apparent memory

6:10

issues as grounds for not pursuing a prosecution,

6:13

observations that have reignited anxieties regarding Biden's

6:15

capacity to stand for reelection. Was her

6:17

out of line or just doing his

6:19

job and making these observations, and how

6:21

will his conclusions impact events moving forward,

6:23

including the prosecution of former President Trump

6:25

for his own mishandling of classified documents?

6:29

In topic 3, I can't pay the rent, but you

6:31

must pay the rent. The

6:59

key point being, Donald Trump has once again resumed the

7:01

role as enforcer over the defense

7:18

spending level of NATO members, suggesting recently

7:20

that he would encourage Russia to do

7:22

whatever it wants with any new members who failed to

7:25

meet their commitments. Comments that have

7:27

triggered new anxiety over how NATO may fare

7:29

in a second Trump presidency if former President

7:31

Trump is re-elected in 2024. How

7:34

serious should we take these comments and what should

7:36

folks be doing in response? For

7:38

our first topic, Alan, let me hand it over to you to

7:40

get us started. So as is my

7:42

want when I get the opportunity, I'm

7:44

going to just turn it right back around to an

7:46

expert who has actually listened to

7:49

the oral arguments and was part of

7:51

one of Lawfare's patented multi-author bylines giving

7:53

a recap. And that is, of course,

7:55

Scott Anderson Scott you paid a lot

7:58

of attention to this argument. Can

8:00

you sort of give an overview of sort

8:02

of what the main points of contention seem

8:04

to be or maybe not points of

8:07

contention given just how one side of the argument seemed to

8:09

be, but rather sort of what were the main things that

8:11

the justices were focusing on

8:13

in order to kind of dispose of this case,

8:16

which I think at this point everyone suspects

8:18

will either be an 8-1 or perhaps even

8:20

if they can get Justice Sotomayor on board

8:22

a 9-0 reversal of

8:24

Colorado throwing Trump off the ballot? Yeah,

8:27

I mean it was a really exceptional

8:30

oral argument to listen to because you

8:32

rarely hear them that are just so

8:34

openly one-sided. Honestly, every justice except for

8:37

Justice Sotomayor really was just highly skeptical

8:39

of the idea that former President Trump

8:41

should be disqualified and were a particularly

8:44

hot bench for the

8:46

lawyer, Mr. Murray representing Anderson

8:48

in this matter, who

8:50

faced like a pretty stiff line of question. I think

8:52

handled himself admirably given that there were a number of

8:54

hard questions and digging into a lot of kind of

8:57

parade of horribles that may follow from particular rulings

8:59

of different types, which are always hard questions to

9:01

answer because they're kind of complex hypotheticals that haven't

9:03

been preached before. I just want to say I

9:06

knew Jason in college. He is a great

9:08

dude, incredibly smart, and I just feel

9:10

really bad for advocates when they come up and just

9:12

like it is hard. Yeah,

9:14

he really got the stuffing knocked out of him

9:17

there. But like it's hard when the eight or

9:19

nine people with black robes and life tenure are

9:21

just like not having it. It's just going to

9:23

be a bad day for you no matter what.

9:26

I think that's right. And in part, I

9:28

don't think people really saw this coming. Like

9:31

the academic conversation, the scholarly conversation has been

9:33

all over the place, but there are such

9:35

strong advocates on the political right and the

9:37

political left from originalist perspectives, from lots of

9:39

different perspectives for disqualification that have

9:42

come out pretty vocally in the last few

9:44

months. I was expecting it to

9:46

be people to have hold

9:48

their cards closer to their chest, perhaps, not

9:50

be quite as clear about where they're leaning, but

9:52

I don't think there was much gray area in

9:55

this decision. Quinta, Ben, feel free to disagree with

9:57

me or Alan. I'm sure it's caught up on

9:59

our arguments now. You know, you can listen to

10:01

the day of. So it was pretty exceptional from

10:03

that regard. The main line though seems to be

10:05

that there was a much less agreement

10:07

about what exactly the grounds

10:09

is for determining for President Trump did not

10:11

covered by Section 3 of the 14th

10:14

Amendment. The main argument advanced by Trump,

10:16

who was benefited by having really an

10:18

exceptional oral advocate, much more effective oral

10:20

advocate than in his briefing, I thought,

10:23

in his lawyer, Mr. Mitchell, who did an exceptional

10:25

job in addressing the initial line of arguments and

10:27

got some tough questions himself. I don't think they're

10:29

entirely soft on him on his different theories. But

10:32

the main argument, David Vance, although it's one

10:34

of several, is essentially one based on this

10:37

Griffin's case idea that's referenced to an 1860s

10:39

case, well, that really only wants to interpret Section

10:41

3 of the 14th Amendment. It's not a Supreme Court

10:43

case. It's not binding precedent, but it's kind of

10:46

taken to be maybe some persuasive

10:48

authority that Section 3

10:50

requires some sort of legislative implementation to

10:52

be used. And I think that's

10:54

the argument that I've got the most center of gravity.

10:57

Certainly Justice Kavanaugh seemed pretty heavily bought into

10:59

it, I thought. It is a

11:02

solution to a lot of the anxiety expressed

11:04

by Justice Kagan and Justice Barrett about what

11:07

the procedures should be, how they should be handled,

11:09

all sorts of carry-on risks. Because once you

11:11

say this repair is implementing legislation, it falls

11:13

on Congress to answer those questions. Chief

11:16

Justice Roberts, I thought, also was kind of leaning

11:18

in this direction, or at least it could help

11:20

address the anxieties he had. Justice Gorsuch may be

11:22

less clear, but also a little bit in that

11:24

way. But it wasn't the only

11:26

argument we've heard. We heard different variations of the

11:28

idea that Section 3 just doesn't reach the presidency.

11:31

A lot touched on the kind of infamous argument

11:33

that we've gotten a lot of

11:36

hay over the last few months about

11:38

how finally you can splice the language of

11:41

Section 3 to distinguish whether a president

11:43

constitutes an officer under the United

11:45

States or an officer for certain

11:47

other purposes in the language of Section 3. We

11:50

saw a somewhat more straightforward version of it, of

11:52

all people by Justice Katanji Brown-Jackson,

11:54

who posited why wasn't

11:56

the presidency expressly listed in Section 3,

11:59

if it's so important. Doesn't that inherently

12:01

create ambiguity? And you

12:03

saw other arguments as well about whether this

12:05

was really something that could state should be

12:07

in a position to do given that the

12:09

14th amendment as a whole was generally understood

12:11

to be empowering the federal government over the

12:14

state. So it'd be strange to all of

12:16

a sudden give the state a ton more

12:18

authority to enforce a federal election disqualification. I'm

12:20

actually not sure that doesn't make sense if I'm being honest.

12:23

I don't think that was the ripest line of questioning, but

12:25

the justices, several of them seem kind of persuaded by it.

12:27

And in my mind, that's another one of these things that

12:30

could easily pivot to a Griffin's case type resolution,

12:32

because again, you're kicking the bucket to Congress to

12:34

answer a lot of these hard questions about how

12:36

you should handle this sort of disqualification. The

12:39

way I came out of this, I know that I co-authors in

12:41

the law fair piece, including Ben came

12:43

on this, and I think, Quinta, you said something similar in your Atlantic

12:46

piece. The writing's on the wall. President

12:48

Trump is not going to be this qualified. I don't think there's any doubt about that, whether

12:50

it's 9 0 or 8 1. That's

12:53

the outcome. The question here is what the

12:55

basis is, and that can have knock-on ramifications

12:57

in terms of other points at which maybe

12:59

he will face other legal challenges on the similar

13:02

legal theory. Later, if

13:04

they just dismiss this more or less on procedural

13:06

sorts of grounds, or whether they get all the

13:08

way to the substantive arguments of how to understand

13:11

Section 3, that might resolve it with more finality

13:13

before 2024. Yeah.

13:15

So I am a little bit

13:17

less convinced that Scott, than Scott

13:20

is, that there is a major

13:23

division among the

13:25

justices here about rationale.

13:28

Oftentimes, what

13:30

you will see in an

13:32

oral argument is people, justices,

13:35

exploring different aspects

13:37

of an argument, but

13:39

then kind of in

13:41

conference and as the draft kind

13:43

of congealing around a

13:46

single rationale. And I think you

13:48

have a vision here of what

13:50

that rationale would be,

13:53

which is the idea that a

13:56

state cannot, a single state on

13:58

its own, cannot. not implement

14:02

Section 3 through its regular

14:05

old election law, but requires

14:07

some affirmative action

14:09

from Congress before it

14:12

can adjudicate a Section

14:14

3 question through ballot

14:16

access provisions. I

14:19

don't think there

14:21

appeared to be five votes

14:23

on the Supreme Court for

14:25

categorically exempting the president from

14:28

the coverage

14:30

of Section 3 of the

14:32

14th Amendment. That

14:34

may reflect my own prejudice that I

14:36

think that argument is a weak

14:39

one. But with the exception

14:42

of Justices Gorsuch and Katanji

14:44

Brown Jackson, I didn't see

14:46

any particular attraction to it.

14:49

And so my assumption is that

14:51

you have a

14:53

working majority of eight

14:56

nine justices who

14:58

seem to think that

15:01

not necessarily that Congress needs

15:04

to pass implementing

15:06

legislation for all coverage

15:09

of Section 3, but as

15:11

applied to the president in

15:14

a state or a federal officer

15:16

in a state, cannot

15:21

proceed to use election law

15:23

without some ballot access law

15:25

without some affirmative permission from

15:27

Congress. So I do expect

15:29

some kind of, I think

15:32

I expect a less fractured court

15:34

here than Scott might, but I

15:37

do expect a pretty

15:39

broad ruling in

15:41

terms of the number of justices and

15:43

the ideological sweep, but a pretty

15:45

narrow ruling in terms of what

15:48

they're actually meaning to

15:51

restrict. I

15:53

think I'm in Ben's camp here.

15:55

So Derek Muller, who's an election law expert

15:57

and blogs on election law blog, has a question.

16:00

had a sort of amusing tweet after

16:02

the end of arguments where he

16:04

suggested that the justices were coalescing around,

16:06

and I quote, what I might characterize

16:08

as a hybrid First Amendment due process,

16:10

Griffin's case ballot access rule. And

16:13

I think the- Is that all

16:15

one word hyphenation? There are

16:17

hyphens. But I mean, I think Derek's

16:20

point as I understood it is that the

16:22

clumsiness is kind of the point there. Like

16:24

they seem to be moving toward a way

16:27

of sort of combining different ideas about

16:30

the role, the limited

16:32

role in their view that states can play

16:34

in deciding these issues on a federal level

16:36

for a national candidate. I

16:39

may be wrong. I did not

16:41

see that in the briefing particularly.

16:43

And so it kind of struck

16:45

me as an example of

16:47

the justices just like really

16:49

wanting to find an off ramp.

16:53

I think that they desperately did not

16:55

want to rule for Trump and

16:57

they were trying to figure

16:59

out how. And I think

17:01

also you see this and

17:03

how uninterested they were

17:06

in addressing the merits of the question. It

17:08

took about an hour before anybody raised

17:11

the issue of whether or not January

17:13

6th was an insurrection. And once

17:15

that came up, it kind of didn't

17:17

really come back again except at the very,

17:19

very end of arguments. And there was a

17:22

really striking moment. I don't have

17:24

the wording directly in front of me

17:26

where Chief Justice Roberts, I

17:29

believe he was asking a question

17:31

of Murray sort of said, well, but you know

17:34

what if we have, you know, one state says

17:36

that there was an insurrection and that president Trump

17:38

is disqualified and other states says that there isn't,

17:40

you know what do we do then? Like do

17:43

we have to weigh in on what

17:45

an insurrection is? And

17:48

my answer would be, yeah, like that's what

17:50

this case is. And for

17:53

what it's worth, I was listening to Will

17:55

Bode's podcast with Dan Aps divided argument this

17:57

morning. Will Bode of course being one of

17:59

the two originalists. law professors who wrote with

18:02

Michael Stokes Paulson, the sort of big law

18:04

review article arguing for an originalist interpretation of

18:06

Section 3 under which Trump would be disqualified

18:08

and will made exactly that point that

18:11

the Chief Justice in that question and

18:13

the court generally seemed both

18:16

discomfited by the possibility

18:19

of a variation of resolutions or

18:21

creates states on this question and

18:24

discomfited by the possibility that

18:26

anybody might expect them to resolve

18:29

the issue on the merits. And

18:31

I think also that's

18:33

potentially dangerous. And the reason, and

18:36

this is an argument that Ned

18:39

Foley and Rick Hasen, who are both election

18:41

law professors, and Ben Ginsberg, the longtime Republican

18:43

election lawyer, made in an amicus brief before

18:45

the court, which Murray pointed to

18:47

during arguments, is that

18:50

if the court doesn't address the merits,

18:52

you can end up in a potentially

18:54

dangerous situation of kind of kicking

18:56

the can down the road where, say, Trump wins

18:58

in November, we don't have a dispositive answer on

19:01

the merits, then members of

19:03

Congress might step in on January

19:05

6, 2025, and say, we're

19:09

going to weigh in on this disqualification

19:11

question. And whether or

19:13

not you think that's an appropriate reading of Section

19:15

3, the way that I read

19:18

the Ginsburg class and Foley

19:20

brief was that you're potentially really

19:22

lighting a match and throwing it on

19:24

a pile of gasoline soaked rags there, given

19:26

what happened on January 6, the last time

19:28

around. And so for that reason as well,

19:30

I think it's a mistake for the court

19:32

to kind of punt here. What?

19:35

And that's why I find the argument that a lot

19:37

of people that Derek kind of channeled, although I took

19:39

his comment to tweet a little bit more sarcastic than

19:41

an actual prediction, to some extent. But you saw a

19:43

lot of people like Leah Litman, who's very smart about

19:45

this stuff, and I hesitate to ever second guess her

19:48

on reading the court, because she's much more close to

19:50

court watcher than I am. And

19:52

a lot of other people seem to glom

19:54

onto trying to say like, oh, we see

19:56

all these different arguments kind of knitting together.

19:58

I take because they were kind of reinforcing

20:00

the Justice weren't challenged. challenging each other on

20:02

them. But I think it's a really hard

20:04

opinion to write, particularly if you think the

20:06

court is going to want to actually get

20:08

some finality. Now, maybe they're going to be

20:11

okay with saying Congress will have to reevaluate

20:13

the Section 3 question when they're counting electoral

20:15

ballots. But I think there's a

20:17

pretty strong institutional drive that they're concerned about that.

20:19

And if they're concerned about knock-on effects for the

20:21

states reaching a ruling, I suspect

20:23

they're going to be worried about knock-on effects

20:25

for Congress and electoral count process as

20:28

well, which is why I think you end

20:30

up... The gravitational poles

20:32

seems to be, therefore, back to a

20:34

much more straightforward Griffin's case type argument

20:36

like Trump was advancing as his primary

20:38

argument, which is that Section 3 requires

20:40

legislation of the type anticipated by Section

20:43

5 of the 14th Amendment,

20:45

which is how we understand other portions of

20:47

the 14th Amendment are implemented, not

20:49

exclusively, notably. So like I said, I'm

20:51

not sure this is persuasive from an

20:53

actual case law perspective entirely, but

20:56

the idea that Section 3 requires appropriate legislation

20:58

to implement, which is what Section 5 says

21:00

how all the 14th Amendment will be implemented,

21:02

makes sense. And that gets you to the final

21:05

resolution because that means that there's no disqualification without

21:07

that legislation that does not exist outside of

21:09

one narrow criminal provision, which everyone seems to

21:12

concede would cover this. And that

21:14

means Congress can't disqualify Trump under Section 3

21:16

either. That's different than if you were

21:18

to say, oh, just states can't do this. It's a

21:20

federalism issue, which I think is actually hard

21:22

to read into the structure of the Section 3

21:24

or the 14th Amendment. You'd have a lot of

21:27

background principles doing a lot of work that

21:29

aren't that cohesive. And I don't know, it just

21:31

didn't get you the outcome. The only other outcome you can

21:33

get to is the president's not covered by Section 3. And

21:35

I had it said here, it's again, KBJ kind of coming

21:38

out of nowhere with that support of that opinion. But

21:40

I don't think that that will carry

21:42

the day for the reasons been noted, just didn't seem to have

21:45

enough support. And so Griffin's case kind of outcome comes out. And

21:47

I will say just for the purposes, this is more or less

21:49

what I predicted back when we started talking about this two years

21:51

ago on this very podcast, but

21:54

my mind kind of wandered a little bit in

21:56

between a bit. We came back too, because it's

21:58

much more about first principles and listening. about the

22:00

merits of the argument for the Supreme Court in these sorts of cases,

22:02

I think. I award you two

22:04

gold stars to Hufflepuff, Scott. Thank

22:07

you. That's all I ask. Yeah.

22:09

Yeah. So I think what's interesting

22:11

about the last 10 minutes of this conversation

22:14

we've been having is, again, just this like

22:16

absolute rock solid consensus that the

22:18

Supreme Court is going to reverse. This will not be closed.

22:20

And we're just, you know, fighting

22:22

over exactly how to cobble together an opinion that

22:24

will write. Again, I

22:27

think that seems right to me as

22:29

a descriptive matter. But I think it

22:31

does raise an interesting question that I think is worth

22:33

reflecting on, which is there aren't

22:35

that many cases, I think, in which there's

22:38

such a dramatic divergence

22:40

between kind of

22:42

elite legal opinion going into the case

22:45

and what the justices will

22:48

decide. Of course, we don't exactly know what they'll

22:50

decide, but we're just going to assume here that

22:52

they're going to pretty summarily or pretty easily reverse

22:54

this opinion. I feel like you have

22:57

to almost go back to the kind

22:59

of original Obamacare case in which

23:01

elite legal opinion was there's no way

23:03

that the individual mandate goes beyond the

23:05

Commerce Clause and then the justices are

23:07

like, the individual mandate goes beyond the

23:09

Commerce Clause. Now, obviously, this

23:11

is different here, right? It's not that there

23:13

was overwhelming legal consensus that Trump should be

23:15

disqualified. But there at least I

23:17

think certainly was a lot of very

23:19

serious people on the left, but notably

23:22

and I think most interestingly on

23:24

the kind of institutionalist Fed Soc

23:26

right, for lack of a better term, who

23:29

thought this was very plausible. I mean, I held

23:31

a conference on the

23:33

Section 3 case that was happening

23:35

in Minnesota in early November.

23:37

And again, we had a lot of different

23:39

points of view, but like there were a

23:41

lot of very serious people, mostly from the

23:43

right, saying, yeah, hearing a 17 reasons why

23:45

Trump is disqualified. And then you

23:47

get to the court and it's just like a

23:50

buzzsaw, right? On the right, on the

23:52

left, in the center. Again, I'm

23:54

not necessarily criticizing the folks who

23:56

were putting forward this argument. I thought

23:58

there were sophisticated arguments. and done in good

24:00

faith. And at the end of the day, it's not the job of

24:03

certainly not any legal academics to

24:05

just try to predict what the court will

24:07

do. But it's just, it

24:09

is a really notable divergence. And so

24:12

I'm curious, you know, what, if anything,

24:14

we should take away from that. Ben, what

24:16

do you think? So I

24:18

think there's a few things going

24:20

on here at once. The first

24:22

is that this

24:24

argument, unusually

24:26

among the sort of

24:29

arguments that academics get

24:31

excited about, has

24:33

a very strong textual basis.

24:37

And so therefore it has an

24:39

attraction to liberal

24:42

academics because it's politically

24:44

congenial and because

24:46

it sounds in civil war

24:48

history that they generally think

24:51

is improperly excluded from

24:54

a lot of modern

24:57

jurisprudence. But it

24:59

also has a real appeal

25:01

to conservative originalists, both

25:04

in the popular culture, people like

25:06

David French, and

25:09

in the academic

25:11

world, people like Will Bode and

25:13

Michael Stokes Paulson. So

25:15

that's one element. But the second element

25:17

is the difference between

25:19

legal academics and Supreme Court

25:22

justices, which is that, you

25:24

know, nobody talks

25:26

about the passive virtues

25:30

for academics, because

25:32

there are none. Academics like to

25:34

make interesting legal arguments and they

25:37

like to find theories by which

25:39

things happen. Amen, brother. Justices, you

25:42

know, at brutally roasted, Alan. In

25:45

their self-conception, like

25:47

to figure out ways not to

25:50

do things, and particularly like to

25:52

figure out ways not to

25:54

intervene in the political process. And

25:57

so there's a bit of a methodological difference

25:59

between between the

26:01

two approaches. And you

26:04

can say that, you know, if you

26:06

look at it from the point of

26:08

view of what's an interesting theory, what's

26:10

historically the most compelling and

26:12

what has the strongest textual basis,

26:14

you're gonna reach a different answer

26:17

than if you with one

26:19

eye on Bush v. Gore say, well, what's the

26:21

best way for us to stay the heck out

26:23

of this issue? So I

26:25

think those are the two factors

26:27

that contribute to

26:30

the difference in excitement level. Yeah,

26:32

I would add that I don't know,

26:35

well, I don't know what academic discussion everyone's looking

26:38

at because there's been a lot, and so I

26:40

may only be focusing on a certain corner. I

26:43

will say the discussion that I was

26:45

focused on was much

26:47

more on the

26:49

merits of the question saying

26:52

what is the right answer, and

26:54

that it was striking to me how much

26:56

there was a consensus moving in

26:58

the direction of section

27:00

three mandate, or at

27:03

least allow it on a state level

27:05

disqualification in a way that I don't

27:07

think I would have predicted before the

27:10

Bode-Paulson article. And I do think

27:12

that that speaks to the actual strength

27:14

of the arguments in question. I mean,

27:16

I will say I didn't think that

27:18

section three mandated disqualification and then did

27:20

a bunch of reading and thought, okay,

27:22

I was wrong about that. But

27:25

that is a separate issue from

27:27

what people thought the court would

27:29

do. And I think that

27:31

the court here was kind of caught between on

27:34

the one hand, the strength of the arguments,

27:37

and on the other hand,

27:39

the apparent weightiness

27:42

of saying that a major

27:44

party presidential nominee had committed an insurrection

27:46

and therefore should be fired from the

27:49

ballot. And I mean, a

27:51

representative example, I think Adam Minkowski, who has a

27:53

great legal sub-stack, wrote a long

27:55

post basically saying like, here are all the

27:57

reasons why the 14th amendment very clearly seems...

28:00

to disqualify Trump, I give it a 10%

28:02

chance that the court will actually do this. And

28:05

so it was always a long shot. And

28:07

the only reason that I think the possibility

28:09

wasn't 0% was

28:12

precisely because of how strong the arguments are. That

28:14

said, I think that the way arguments went made

28:16

it pretty clear that like, you

28:18

know, the cake was baked going into this. They knew

28:20

what they thought they were doing. They were just looking

28:22

for a reason to justify it. Well,

28:25

in a lot of the arguments in this

28:27

space, this is unusual for academics and kind

28:29

of commentary. Like they're situating,

28:31

the authors are situating themselves as justices saying,

28:34

we're looking at the legal question here, right?

28:37

Setting everything aside. I think the merits for the reason Quintan

28:39

noted are like pretty strong here. I mean, it

28:41

makes some intuitive sense that after the Civil War,

28:44

if they're worried about disqualifying former Confederates from a

28:46

variety of public offices, that that would reach the

28:48

presidency. And the historical practice is all

28:50

over the place in a way that does not

28:52

comport with the reference rule original understanding, although you

28:54

can pick your history and, you know,

28:57

line things up in a way to make a

28:59

case there, right? But the

29:01

actual Supreme Court that actually deals with the real

29:03

world context, which the Supreme Court operates just doesn't

29:05

decide things strictly on the merits. It

29:07

is influenced by a whole variety of

29:10

other political institutional considerations that, you know,

29:12

derive the outcome. And yeah, the actual

29:14

merits of legal argument, I think, constrain

29:17

legal outcomes within a certain band of

29:19

plausibility. But within that band

29:21

of plausibility, those other factors

29:23

do a lot of work in guiding towards

29:25

where these questions were. If you listen to

29:27

the questioning, that's what's really interesting. When KBJ

29:29

was really hitting on that point about the

29:31

president being not listed in Section 3, what

29:33

does she say? Doesn't that introduce a lot

29:35

of ambiguity in this scenario? They are searching

29:38

for ambiguity so hard because when they find

29:40

ambiguity, that gives them a lot of leeway

29:42

to begin to say, well, now we can

29:44

decide what we think the right outcome is

29:46

institutionally, politically, policy-wise, more or less,

29:48

even though they do it kind of implicitly

29:50

in a lot of arguments. You

29:53

know, that's just that's legal realism, right? Like,

29:55

I think this is a real observation, but

29:57

legal academia, a lot of scholarship doesn't position.

30:00

itself as predicting what this Supreme Court will

30:02

do. They are positioned as saying, here's what

30:04

we think the right arguments are, should be

30:06

based off what we think justices should be

30:08

weighing, and particularly the merits

30:11

considerations that we all agree should

30:13

go into judicial decisions, not those

30:15

high politics and institutional considerations that

30:17

are more controversial and get

30:19

forced out unless you just embrace a much more

30:21

frankly legal realistic mode of this sort of thing.

30:24

So the last question I want to ask before

30:26

we close out is what, if anything, this argument

30:29

and again, let's assume that the decision

30:31

is pretty strong in reversing

30:33

the Colorado Court, what

30:36

this decision says about how the court

30:38

might treat other Trump related matters, right?

30:40

Let's take, for example, the immunity question

30:42

that is currently in front of the

30:45

court with respect to

30:47

Trump's criminal immunity or lack thereof

30:49

in the federal January 6th criminal

30:51

case against him. One

30:54

possibility might be that this is the court

30:56

trying to stay out of these issues. One

30:58

possibility might be that the court might kind

31:00

of try to pair not explicitly,

31:02

but kind of between the lines, a

31:05

win for Trump here with a pretty

31:07

clear, you know, 8-1-7-2-9-0 loss for Trump

31:09

in the immunity case. Quinto,

31:11

what do you think? Read the chicken entrails for

31:14

me, please. Happy to.

31:16

Look, I think in some ways

31:18

that timing for the court is kind of fortuitous

31:21

here. The DC Circuit ruled

31:23

on the immunity issue right

31:25

before the Supreme Court

31:28

heard arguments on the 14th Amendment

31:30

issue, and that does leave them

31:32

kind of a nice way

31:35

to split the baby,

31:37

so to speak, and

31:39

say, you know, look at us, how high

31:41

and mighty we are, how wise, how above

31:43

politics we did with one hand, we take

31:46

from the other. You know, we

31:48

are truly not beholden to Trump in any

31:50

way, yet we are also not partisan Democrats

31:52

either. Can we call that

31:54

the the Rosenstein gambit, the both-size Rosenstein

31:56

gambit? Yeah, I mean, so I will

31:58

say, I think... I think it is interesting

32:02

how quickly the punditry, and I include

32:04

myself in this to some extent, kind

32:06

of began to coalesce around this option.

32:08

I think Adam Lipptak had a New

32:10

York Times story around it. There's

32:13

an extent to which this kind of

32:15

fits very nicely with how John Roberts

32:18

often tries to wiggle

32:20

out of the various political

32:23

corners that he so often finds

32:25

himself in. And I confess

32:27

I will be a little amused if the court

32:29

does end up taking that kind of option and

32:31

everybody congratulates them on

32:33

how wise, how thoughtful, how unexpected

32:36

this solution was. But

32:38

it is what it is. Our nine sages

32:41

will make the decisions that they make. Well

32:44

going from one presidential disqualification to

32:46

another, let us turn our sights

32:48

to the Her Report, which came

32:50

out this past week. Special

32:52

counsel Robert Herr appointed late last year

32:54

after the revelation that a number of

32:56

classified documents were located at President Biden's

32:58

home in Wilmington, Delaware, as well as

33:00

at the Penn Biden Center and a

33:03

few other offices he has used over

33:05

the years. We saw

33:07

Attorney General Merrick Garland appoint Robert

33:09

Herr, a former Republican appointed U.S.

33:11

Attorney, as I recall, to conduct

33:14

this investigation as special counsel looking into

33:16

President Biden's handling of these classified documents

33:18

or mishandling of these classified documents alleged

33:20

at this point. The report

33:22

we got last week handed down in the

33:25

midst of the aftermath of the Trump v.

33:27

Anderson argument essentially was an incredibly lengthy report,

33:29

370 odd pages as I recall, going

33:33

into incredible depth about how these documents

33:36

were handled and then goes

33:38

into decisions about the

33:40

reasoning behind declining to bring criminal

33:42

charges. And among those, even

33:44

though among those 370 pages was a

33:47

lot of documentation of documents

33:49

being that are classified

33:51

or containing classified information, seemingly being quite

33:53

deliberately withheld by President Biden, particularly after

33:56

he left the vice presidency and earlier

33:58

in his career. during his time

34:00

in the Senate, nonetheless, they chose

34:02

not to pursue a prosecution. And

34:04

among the reasons listed and kind of emphasized in

34:06

the report is that he is an elderly man

34:09

who will be in his 80s, advanced age at

34:11

that point. I think the report assumes this would

34:13

not happen until after he were outside, out of

34:15

the White House. And

34:17

that he is somebody

34:19

who had a demonstrated memory lapses

34:21

that would be sympathetic. They specifically

34:23

noted that he had trouble recalling

34:26

the year that his son Beau

34:28

died, at the beginning and end

34:30

of his vice presidency and quoting him on that regards,

34:33

in ways that have really triggered the ire

34:35

of the White House that is very sensitive

34:37

about these sorts of allegations, given that Biden's

34:39

age is a point of concern and contention

34:42

in the 2024 election where he is

34:44

standing for reelection, even though his most likely

34:46

rival appears to be almost the same age.

34:48

But nonetheless, they appear to be a point

34:51

that Biden is particularly sensitive about. Ben,

34:53

you wrote, I thought actually quite a good piece with

34:55

our colleague Matt Gluck on this

34:57

yesterday, kind of laying out your views

34:59

about it. What do you make of this report? What do

35:01

you think are the big takeaways and how do

35:03

they intersect with both the 2024 election question

35:08

and broader policy questions about handling classified

35:10

information? And most notably, the

35:12

fact that we have another criminal prosecution

35:14

taking place right now of a former

35:16

president, former President Trump for mishandling classified

35:18

information as well at Mar-a-Lago. Yeah.

35:20

So there are a lot of

35:23

questions embedded in there and I

35:25

want to disaggregate them a little

35:27

bit. First of all, as to

35:29

the White House's

35:31

anger and the President's personal

35:34

anger at the report,

35:36

I actually thought the report was

35:39

less horrendous than the White

35:41

House did in terms of

35:43

the gratuitous political

35:46

swipes at the

35:48

President. Another one, another good episode title

35:50

you've stolen from me. We've

35:52

got to get you in on this Google Doc right, both of

35:54

these things earlier. In

35:57

context, the references to

35:59

Biden's... memory are genuine

36:03

assessments of how his defenses

36:05

would likely play in front

36:07

of a jury of

36:09

a type that you expect to

36:11

see in a prose memo, which

36:13

is what this document actually is.

36:16

The problem arises because

36:18

the prose

36:21

memos that prosecutors normally write, and

36:23

in which they typically write this

36:25

sort of thing, don't

36:28

normally become public. And this

36:30

document under the regs is

36:32

not supposed to be a

36:34

public document, but the attorney

36:36

general has, starting

36:38

under Bill Barr

36:41

with the Mueller report, but

36:43

continuing under Merrick Garland, the

36:46

attorney general has kind of

36:48

changed this private report requirement

36:51

into a public report. And

36:54

the result is that these comments

36:56

that her made, which

36:59

were, are not inappropriate

37:01

in my view in a

37:03

private prose memo, become

37:05

public. And they happen to track

37:08

rather unfortunately with Republican

37:10

talking points, as well

37:12

as Democratic anxieties about

37:16

having an 80 plus

37:18

year old presidential candidate.

37:21

So look, I think all

37:23

of that is unfortunate for Biden.

37:26

It is not actually the part that

37:29

really interested me in the report, which

37:32

was the, I

37:34

thought, very upsetting portrayal of Biden's

37:37

actual behavior, which has been somewhat

37:40

lost in this whole discussion

37:42

of how offended

37:44

we should be by Mr. Herr's

37:47

behavior. You know, this

37:49

is another president

37:51

who, or

37:53

presidential candidate who has

37:55

retained classified

37:58

information, used it for

38:00

personal purposes. And

38:03

while the case is quite different

38:06

in a lot of respects from

38:08

President Trump's and certainly isn't

38:11

remotely as bad and I'm

38:13

perfectly comfortable with the outcome,

38:16

which is Trump being indicted

38:18

on 40ish counts in

38:21

the Mar-a-Lago case and President

38:24

Biden not being indicted, I think that's

38:26

a perfectly reasonable difference

38:28

under the circumstances. I

38:30

did walk away from it saying,

38:33

gosh, here's yet another person

38:37

who at the highest levels

38:39

of government is unwilling to

38:41

follow the rules. And that

38:43

bothers me

38:45

because a lot of people

38:47

actually take those rules pretty

38:50

seriously and people

38:53

do get in a lot of trouble

38:55

and have kind of career ruining or

38:57

life ruining consequences when they don't.

39:01

The final thing I'll say about it

39:03

is, you know, it really

39:06

reminded me of the David Petraeus

39:08

case. In

39:10

both cases, again, the Petraeus

39:12

case was worse in important

39:14

respects, but in both

39:17

cases, you had a senior

39:19

official who kept notebooks with

39:21

classified information, which he

39:23

shared with, in one

39:25

case, a biographer and in another case,

39:28

a ghostwriter

39:31

and did so kind of knowing that there

39:34

was classified information in there.

39:36

And I, you know,

39:38

just think we should expect

39:40

better of our political leaders.

39:43

And I think that Biden's

39:45

anger at his press conference

39:47

last week really

39:50

missed the point, which was that he

39:53

had aired and it warranted

39:55

a little bit more contrition than he

39:57

showed. Ryan

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You know, and help us stack for a great

40:58

cost. I

41:04

agree. I think that it

41:07

is difficult to discuss this because there

41:09

are so many issues wrapped

41:11

up in this

41:13

one report. As you say,

41:15

then the question about handling of classified information is

41:17

a serious one. I think that there really is

41:20

a, you know, it

41:22

is possible to take this report

41:25

seriously without defaulting

41:27

to focusing

41:30

on the question of age and memory, which I

41:32

feel like is a way that a lot of

41:34

the political press has kind of defaulted to. You

41:37

know, like if you take it seriously, then you

41:39

must yell a lot about how Joe Biden is

41:42

And I don't think that you need to do that. Frankly,

41:46

we owe it to all the people whose lives

41:49

have been ruined because of mishandling

41:51

classified information that was way less egregious than

41:53

this at lower levels of government to take

41:55

it more seriously and, you know, think about

41:57

what this says about how... the

42:00

system clearly needs to be changed because this is

42:02

not working. I also think that

42:04

there are serious implications here about

42:06

how we think about the role of the special counsel

42:09

system, to bend to your point about how

42:11

this is written as a prosecution

42:13

memo. Those include negative information

42:17

about the person being investigated by their very

42:19

nature since it's laying out whether or not

42:21

you're going to prosecute somebody. But,

42:24

and yet, the assumption is that this is going

42:26

to become public and maybe that means that we

42:28

need to think about how

42:31

the special counsel regulations are written

42:33

and whether there are tweaks that

42:36

can be made. I

42:38

don't know if there is a better system

42:40

here, but it does seem to me like

42:43

insofar as the existing

42:45

regs were designed in

42:48

response to the failure of the

42:50

independent counsel statute to allow for

42:52

some level of independent investigation while

42:56

not having a prosecutor go completely

42:58

rogue but also reassuring public

43:00

confidence in the integrity of the Justice

43:03

Department and of these investigations. That

43:06

is not working and I don't know what a

43:08

better system is, but this one is not doing

43:10

it. Alan, I know you have something to say here

43:12

and I will let you jump in before I

43:14

go to the memory issue, which I do think

43:16

matters. Yeah, well, I

43:18

mean, I just, am I

43:20

wrong that there's just a massive amount of

43:22

hypocrisy on this point, right? Like, I

43:25

feel like I was, I'm old enough to remember when Bob

43:28

Mueller wrote a very long, you know,

43:31

report about Donald Trump and,

43:33

you know, concluded that

43:36

Trump should not be or could not

43:38

be indicted or

43:40

prosecuted and then wrote hundreds

43:42

of pages of pretty

43:44

damning stuff about what Trump did and

43:47

liberals were pretty angry when then

43:50

Attorney General Bill Barr tried to de-emphasize

43:53

that portion and yet those many of those

43:55

same liberals seem very angry that Merrick Garland

43:57

did not do the exact same thing here.

44:00

equivalent to? I mean, I'm actually

44:02

not trying to be spicy here. Like, am

44:04

I missing something? Or is this just purely,

44:07

like, people, partisanship is a hell of

44:09

a drug? So, look, there are,

44:11

it is definitely true that I have

44:13

seen people on the left make the argument that

44:15

like, Merrick Garland should have edited the report ahead

44:17

of time or something, which I think is insane

44:19

for all of the reasons that you just set

44:22

out. I will say, as

44:24

someone who spent a fair amount of

44:26

time along with them thinking seriously about

44:28

the way that the regs were and

44:30

weren't working during the Mueller investigation, I

44:33

do think that some of what you're describing

44:35

about Mueller reflects other ways

44:37

that this system is not working, right?

44:40

So, I agree that like, taking

44:42

away from the Herr Report, okay,

44:45

the Attorney General should have no discretion

44:47

to release the report, is

44:49

not a solution precisely because you can

44:52

have scenarios like the Mueller investigation where

44:54

like, we really did need that document

44:56

to become public. That said, I do

44:59

think that, you know, Barr was able

45:01

to take advantage of some of the

45:03

ambiguities and the regs and the limitations

45:06

on independence and the discretion and releasing

45:08

information to kind of warp

45:10

the public conversation ahead of time. It's

45:12

also true that, you know, the public

45:16

did not understand Mueller's investigation to

45:18

be, you know, fully independent and

45:20

nonpartisan. Certainly, like, you know, there

45:22

were plenty of people on the

45:25

left who chose to see it

45:27

that way. And I think it was, to

45:29

be clear, but just in terms of public perception, but

45:31

it was also attacked ceaselessly on

45:33

the right as something that was

45:36

partisan. And so, to the extent

45:38

that the system is designed the way it is to

45:42

re-insure public confidence, that is not

45:44

working. And I think there are

45:46

aspects and tensions in

45:49

how, in the weaknesses of the regs as

45:51

designed, that we see manifesting in

45:53

Mueller and in her in different ways. All

45:56

of which is to say, like, I don't know what

45:58

the solution is, but I do think that it

46:00

is consistent to say across the experiences of

46:02

the last few years this is not working

46:05

so well. But you know it's

46:07

hard for me to imagine a very

46:10

compelling alternative though. Like in both of these

46:12

cases you're put in

46:14

a really difficult situation where you have

46:16

an incumbent president being investigated for really

46:18

potentially troubling actions. I think maybe

46:21

are you can argue somewhere of different scale than others

46:23

or different seriousness than others but I think they're both

46:25

serious enough and and were in consideration. And then

46:27

the Justice Department that is nominally independent but we

46:29

all know in practice isn't always as independent as

46:32

ideally it would be or may not be

46:34

as independent isn't perceived that way. Having to

46:36

make the difficult decision saying here we're not

46:38

going to pursue charges or we don't think it's appropriate

46:40

in these cases and having

46:43

to provide a public reason for that. I can't

46:45

imagine a universe where you could really withhold that

46:47

and and not face political backlash

46:50

and not for reasonable reasons. Like maybe if

46:52

it's you're the president like I generally think

46:54

for anyone almost anyone other than the president

46:56

there would be a stronger case for like

46:58

withholding these memos because generally someone who's not

47:00

pursuing criminal charges shouldn't have their dirty laundry

47:02

aired in public by the Justice Department. I

47:04

think it's 100% true but maybe the president's

47:07

just one of those cases that the nature

47:09

of the office and the politics around it like

47:11

just require that to be the sacrifice here. The

47:14

question I do have though and I want to

47:16

turn me back to you on this Quinta is

47:18

you know I do think her

47:20

maybe could have exercised more discretion in how he framed

47:22

this thing. I don't know if that's a

47:24

matter of like writing the regs better. I think it just may

47:26

have been a choice that her made that

47:28

some people agree with and disagree with. I think

47:30

he probably laid it on a little thicker on

47:33

the memory points and frankly on the sheer volume

47:35

of this report which is longer than the Mueller

47:37

report I think or approaches the Mueller report in

47:39

length and it just does not cover the same

47:41

scope of conduct. Strikes me as like laying

47:44

it on a little thick. I

47:46

don't know how you how you reg around that

47:48

right? Like I think that's just a decision that somebody made

47:50

and the whole point is to give them a fair amount

47:52

of autonomy but I but I do think there's space to

47:54

criticize him in that. What do you

47:56

make of the memory allegations and and the other

47:59

sort of comments about Biden, how problematic do

48:01

you find them and do they raise other concerns for you?

48:04

I agree about the framing. I do think,

48:06

you know, to the extent that Biden's

48:09

defense as he presented

48:11

it to her was,

48:13

you know, oh, I forgot, that

48:16

does seem to some extent to

48:18

be appropriate to include in a

48:20

prosecution memo. I think I will

48:22

say to me personally reading it,

48:24

what really rubbed

48:26

me the wrong way just as a reader

48:30

was the fact that among the

48:34

dates that her stated that Biden

48:36

could not recall was the

48:38

date of the death of his son

48:41

or the year when his son, Beau

48:43

Biden died, which

48:45

in Biden's press conference seemed

48:48

to be the thing that he was the most

48:50

angry about. Now, I'm sure it's also, you know,

48:52

good politically for him to frame this as, you

48:54

know, how dare you attack my family. But I

48:57

mean, I look, I, if

48:59

I try to think about the years when

49:01

people close to me have died in

49:04

sudden and traumatic ways, like, I don't know if

49:06

I could point to the date, right?

49:09

There's I was

49:11

thinking about this in relation to

49:13

something, you know, various like

49:15

negative events in my life that left a big

49:18

impression on me. And I don't know

49:20

if I could pull the date out of a

49:22

hat. And I'm also not 81, which

49:25

I think goes to my to my other

49:27

point, which is like, yes,

49:29

certainly, I am not

49:31

super happy about the fact that

49:34

both candidates in this election are over the age

49:37

of 75. I actually do think

49:39

that that is a substantial

49:41

problem for a number

49:44

of reasons. But I also

49:47

think it is true that, you know, there

49:50

are different forms of memory, there's been

49:53

some interesting writing about doctors and psychologists

49:55

sort of responding to this in light

49:57

of the her report and that If

50:01

this is actually a

50:03

serious problem in the sense that it's,

50:05

you know, impairing Biden's ability to govern,

50:07

I would expect to see a bunch

50:10

of reporting to that effect.

50:13

And I think it is notable that

50:15

we haven't yet seen that, right? Like

50:17

there is a big difference between not

50:20

remembering the year in which

50:22

something happened and

50:24

like having a substantial error and

50:26

judgment in your role

50:29

as president. And

50:31

I think that we haven't really seen anything,

50:33

any reporting to the latter effect yet. So

50:35

I will certainly be keeping an eye on

50:37

that, but that does make me feel a

50:39

little bit differently about how

50:41

this is playing politically. I just want

50:43

to be, I just want to clarify Quinta may not be

50:45

81 in body, but she's still the 81 in spirit. That's

50:49

beyond doubt. Yeah. So

50:51

I have three quick points. The first is

50:53

on the memory point. There

50:55

is nothing in that report that the

50:58

public did not already know. Joe

51:02

Biden has all

51:04

kinds of verbal hiccups,

51:06

whether you attribute those to his being 81 and

51:12

having some degree of

51:14

cognitive decline, or whether you attribute

51:16

it to the fact that he's

51:18

always been that way and he's

51:21

a kind of gaffe machine. He

51:23

trips over things. He replaces

51:25

words with other words. It

51:27

is not wholly unlike George

51:29

H.W. Bush in that regard.

51:32

And there's an aphasic quality to

51:34

his speech that

51:36

he does not appear to notice. So

51:40

he gets very angry when it's

51:42

pointed out to him, but it's,

51:45

that's what her is

51:47

noticing. And he does forget

51:49

details and he gets things

51:51

wrong. That's what's

51:54

in the report and her makes an

51:56

evaluation that this would be a problem

51:58

in front of a jury. I do not

52:01

begrudge him that observation, nor do

52:04

I think it's really,

52:06

it's playing to Biden's weak spot

52:08

in a campaign. And I can

52:10

understand the campaign

52:12

and Biden's anger at that. And

52:15

as Quinto points out, it does involve some

52:18

painful examples, but

52:21

it's really not telling the public anything

52:25

that the public doesn't know. From

52:28

the question of the policy

52:31

of the special

52:33

counsel regs, this is an issue that

52:35

I have for my

52:37

sins in life dealt with for

52:39

literally my entire adult life as

52:42

a professional. And

52:45

it is Alan's point is

52:47

correct that whenever you are on

52:50

the side of an

52:52

investigation, you feel

52:55

like that investigation lacks adequate

52:57

independence and lacks the ability to

52:59

do the things it needs to do. And

53:02

whenever you are sympathetic to the

53:05

subject of the investigation, the investigation

53:07

feels under out of control and

53:10

feels unbounded by the

53:12

norms and behaviors that

53:15

the Justice Department normally does.

53:17

There is no way to

53:19

square this circle. You

53:21

have to make choices. And the choices

53:23

that we have made, which

53:25

we've then bent because we don't

53:27

live under the special counsel rules

53:29

quite as written, are

53:31

that we have rebuilt the

53:34

independent counsel law under the

53:36

rubric of the special counsel,

53:38

the attorney general names,

53:40

and then leaves alone the special

53:42

counsel. And with the solitary exception

53:45

of Bill Barr sort

53:47

of editing, redacting

53:49

parts of the Mueller report

53:51

and mischaracterizing it really doesn't

53:54

get involved. And so in fact,

53:57

the independence is quite extreme, both

53:59

in situations in which

54:02

that independence is salutary

54:04

and in situations like Durham,

54:07

where it's really quite damaging. The

54:10

final point I will make is that, look,

54:13

this really, it is important to

54:15

separate this case from the Trump

54:17

case, which, you

54:19

know, Mr. Her was

54:23

actually quite candid that his

54:25

evidence was not strong enough

54:27

to bring a case quite

54:29

apart from Biden's memory issues,

54:32

that just the evidence that

54:34

this material was willfully as

54:36

opposed to accidentally retained and

54:38

disclosed is not 100%. And

54:43

more importantly, that Biden's cooperation

54:45

with and disclosure of the

54:48

material when found was the

54:50

cooperation was essentially total, the

54:53

investigator was self-reported. All

54:55

of this is radically different

54:57

from the Trump case. And

55:00

so, look, if the question is, should

55:03

we cluck at Biden's conduct,

55:05

I think the answer to that question

55:07

is yes. And I think

55:09

it's worse than Hillary Clinton's. I

55:12

think it's kind of not

55:14

as bad as, but in the

55:17

same general department as Petraeus's. And

55:20

I think it's very unfortunate and ugly.

55:22

If the question is, should he be

55:25

prosecuted, is it similar to Trump's, the

55:27

answer is absolutely not. And

55:29

so I'm not sure that the political

55:32

arena is the wrong arena for people

55:34

to think this through, both

55:36

in terms of evaluating his memory

55:38

and what we should make of

55:40

that, and in terms of evaluating

55:43

how much we want to hold

55:45

against him, the conducting question. Well,

55:48

let's move then to the other presidential

55:50

candidate who made some interesting

55:53

comments about NATO at

55:55

a rally recently. I will simply read them to

55:57

you and I will not do a Trump voice because I'm not going

56:00

at that. So this

56:02

is Imagine Trump's Anglist. Quote,

56:05

one of the presidents of a big country, he's talking

56:07

here about something that he says happened in 2018, stood

56:10

up and said, well, sir, if we don't pay

56:12

and we're attacked by Russia, will you protect us?

56:15

I said, you didn't pay your delinquent?

56:17

He said, yes, let's say that happened.

56:20

No, I would not protect you. In

56:22

fact, I would encourage them to do whatever the hell they

56:24

want. You got to pay. You got

56:26

to pay your bills. So

56:29

this is Donald Trump saying

56:31

not only that he would

56:33

not come to

56:35

the aid of a fellow NATO member

56:38

if they were attacked by Russia, if they

56:40

had not paid, we'll put an asterisk on

56:42

what that means, but that

56:44

he would affirmatively encourage Russia

56:46

to attack them. This continues

56:48

what seems to be his

56:50

persistent confusion over the course

56:52

of six years more

56:54

about what NATO actually is and

56:57

what it means to pay for

56:59

NATO. And these comments have unsurprisingly

57:01

caused a fair amount of alarm.

57:05

Other other NATO members and among

57:08

sort of people in the national security

57:10

space, including former members of

57:12

the Trump administration, such as one

57:15

john Bolton, who has been going around

57:17

basically saying, you know, he is dead

57:19

serious about this, do not think

57:21

that this is a joke or exaggeration. He absolutely

57:23

thinks that this is how NATO works, and he

57:25

will do this. So

57:28

Scott, resident NATO defender, first

57:31

off, can you explain why Trump's interpretation

57:33

of how NATO works is wrong? And

57:36

second off, are we all do? So

57:39

Trump's interpretation is wrong, but there is

57:41

actually a point of merit underlying this

57:43

this line of inquiry that Trump has been pursuing really all

57:46

the way back to 2017 2018 early in his presidency, and

57:48

perhaps even in time

57:51

as a candidate, I think there were some

57:53

comments during the 2016 election. The basic point

57:56

is that about 10 years ago, less

57:59

than 10 years ago, NATO set a

58:01

10-year goal that all NATO members would spend

58:03

at least 2% of their GDP on

58:05

defense spending. They would slowly ratchet that up. And

58:07

now we are almost at the expiration of that

58:09

10-year window. I think it is 2024, maybe

58:12

it's 2025, I can't recall exactly. And

58:15

that only about a third of NATO members have actually

58:17

hit that target. And that's in spite of the

58:19

war in Ukraine, giving a lot of impetus

58:21

to European governments to up their defense spending in a

58:23

serious way. Many of them have, many

58:25

of them have expressed an intent to work

58:27

towards this 2% target that is much more

58:30

serious and committed, and that they've demonstrated more steps the last

58:32

two years than they did over the prior eight. But

58:34

it's a point of, you know, long-standing policy

58:37

concern and frustration by the United States and

58:39

select other governments, because the United

58:41

States does, as a result of

58:43

this, bear a disproportionate

58:46

part of the burden of defense costs,

58:48

and the defense risks entailed in any

58:50

sort of military encounter with Russia or

58:53

with anyone else under the NATO umbrella.

58:55

That said, what this does not mean

58:57

is that this is not an opportunity

59:00

to start ignoring your treaty obligations. The treaty

59:02

obligation to come to the defense of NATO

59:04

partners is not contingent upon full payment

59:06

of this amount, nor could it be because this

59:08

was just kind of a policy decision made decades

59:10

late after the fact. There is supposed

59:12

to be a clear obligation in place. That

59:15

said, another thing to bear in mind is that the

59:17

Article 5 obligation that is the hinge of all this

59:19

actually isn't quite the firm obligation people think it is.

59:21

It is a firm obligation to consult and

59:24

to come to the aid of NATO members, not

59:26

necessarily with military intervention. They

59:28

actually quite expressly don't

59:30

say that as a requirement. And

59:32

that was a matter of design of NATO, in

59:35

part because of U.S. constitutional concerns about

59:37

whether the president or Congress has to

59:39

authorize military intervention, the use of force

59:41

over disease, among other policy considerations. So

59:43

there is lots of wiggle room, even

59:45

within the existing legal framework by which

59:47

a former President Trump, pardon me, a

59:49

future President Trump, could exercise

59:52

as authority's commander-in-chief to say, nope, I'm meeting these

59:54

NATO obligations because I'm holding these meetings. I am

59:56

providing assistance. Maybe I'm setting arms. Maybe I'm doing

59:58

other things that I think are important. think is

1:00:00

appropriate, which is kind of the

1:00:02

standard set by Article 5. But

1:00:05

it doesn't entail fully coming to their defense. And

1:00:07

that's the real harm of Trump's statements here, which

1:00:09

aren't new. I don't think this is surprising for

1:00:11

everyone who's been following Trump on this for the

1:00:13

last several years, but it's disturbing

1:00:15

because the deterrent effect of NATO

1:00:18

hinges on the willingness

1:00:20

of particularly the United States and other NATO

1:00:22

members, but particularly the United States to come

1:00:25

full bore to the defense of NATO allies,

1:00:27

even though they don't have a hard obligation

1:00:29

to do so. And

1:00:31

so when you start signaling weakness in

1:00:33

that commitment, you undermine the credibility of

1:00:35

that deterrent effect. And that's ultimately like the idea

1:00:38

behind NATO isn't to have to go to have

1:00:40

these wars, it's to deter people from starting them

1:00:42

in the first place. And so

1:00:44

for that reason, it's very reasonable for

1:00:46

I think NATO members to have concern

1:00:48

over this, even if it's not anything

1:00:50

new, even if NATO

1:00:53

leadership is very clear, we think the United States will

1:00:55

remain a strong ally of NATO, even

1:00:57

if former President Trump is elected. As they've said

1:01:00

quite expressly, there has to be some anxiety underlying

1:01:02

that because even if Trump doesn't follow up on

1:01:04

these threats, the fact that he's saying them

1:01:06

undermines the effectiveness of NATO as a deterrent.

1:01:08

And in some ways, the fact that some

1:01:10

of his policy advisors like Keith Kellogg have

1:01:12

come out saying, well, here's ways we could

1:01:14

restructure NATO to make what Trump says more

1:01:16

of a realistic possibility other

1:01:19

than the fact that they're kind of foolish proposals

1:01:21

because you would have to have unanimous consent of

1:01:23

NATO to amend the treaty arrangement and pursue a

1:01:25

bunch of other arrangements, or you

1:01:27

would have to trash NATO and just start over from scratch. Like

1:01:30

setting that aside, even they just

1:01:32

go further in undermining the idea,

1:01:34

the credibility of NATO. And

1:01:36

they kind of make the idea that Trump might

1:01:38

actually be pursuing these as policy changes much more

1:01:40

credible in a way that again, I think further

1:01:42

undermines that deterrent effect. Scott, I'm

1:01:45

curious, how much does the recent

1:01:47

law that Congress passed making it

1:01:49

more difficult for the president to unilaterally

1:01:52

withdraw us from NATO? A law that

1:01:54

I will henceforth call the Scott Anderson

1:01:56

saves NATO law because as far as

1:01:59

we can tell, it was inspired by a law

1:02:01

firm piece you wrote for

1:02:03

any current or prospective funders. That's what

1:02:05

we call impact. There we are.

1:02:07

Yes, please. Take note. If

1:02:09

you like NATO, I've got other

1:02:11

ideas. Fund law firm. I

1:02:14

mean, to what extent does that, I

1:02:16

don't want to say obviate, but maybe minimize

1:02:18

the risk of what would happen to

1:02:21

NATO in a second Trump administration? So

1:02:24

it's a big step in the right direction, although

1:02:26

there's actually an additional step that was dropped out

1:02:28

of the law that needs to be taken. It's

1:02:30

something I'm working on a piece on right now,

1:02:33

and I think is a real positive step that

1:02:35

Congress or actually just the House and or Senate

1:02:37

could and should take on its own. What

1:02:40

that provision does is it's pretty straightforward. It says

1:02:42

expressly, the president shall not withdraw from NATO without

1:02:44

permission of two thirds of the Senate, the advice

1:02:46

and consent of two thirds of the Senate or

1:02:49

pursuant to an act of Congress. And then it

1:02:51

says no funds shall be used for that purpose,

1:02:53

absent that permission. There's some other notification provisions, things like

1:02:55

that. But those are the key elements of the law.

1:02:58

The reason that's important is because the president's

1:03:00

authority to withdraw from treaties is something that's

1:03:02

not spelled out in the Constitution anywhere. It's

1:03:04

something the president has only exercised over the

1:03:07

course of the 20th century. Before that, Congress

1:03:09

usually had a role in removing the United

1:03:11

States from treaties, although the ways it did

1:03:13

vary pretty dramatically over the years. And

1:03:16

if we look at this through the lens of how the

1:03:18

Supreme Court and the executive branch tend to think about the

1:03:21

presidential authority implied authorities from the

1:03:23

Constitution, it exists in what is

1:03:25

famously called the zone of twilight, an area where

1:03:28

the president doesn't have an expressive authorization, but

1:03:30

he's not clearly acting contrary to Congress. And

1:03:32

everybody agrees this is an authority to have

1:03:35

to lie somewhere with the political branches because

1:03:38

it's obviously a federal authority that has

1:03:40

to live somewhere. And so

1:03:42

the president essentially often is given a substantial

1:03:44

leeway to act so long as

1:03:46

Congress is silent. But

1:03:49

it presents a much more difficult question

1:03:51

when Congress actually enacts a prohibition. When

1:03:53

you were in a situation that Justice

1:03:55

Jackson famously described as the lowest ebb

1:03:58

in carving out what is known as the... Youngstown framework in a

1:04:00

concurrence opinion in 1952, if I recall correctly, 52 or 54. I

1:04:04

can't remember off the top of my head. But essentially

1:04:06

that means that all of a sudden where

1:04:08

if Congress expressly prohibits something, which this law

1:04:11

does, if the president tries to do it

1:04:13

using implied powers, the presumption of

1:04:15

that framework is that the president doesn't have that

1:04:17

authority unless he can point to some

1:04:19

sort of a constitutional grant that is exclusively

1:04:21

his, meaning Congress has no ability

1:04:23

to even disable him or affect him in

1:04:25

how to do that. I don't think there's

1:04:27

a constitutional grant that express, or at least

1:04:29

the case for it is extremely weak. The

1:04:31

executive branch, no Trump administration itself did release

1:04:33

an OLC opinion in December 2020, as

1:04:36

was leaving office asserting that there was express authority

1:04:38

and exclusive authority in the president doing this

1:04:40

rooted in the logic of a Zivatovsky opinion

1:04:42

that came out in 2015 that I worked

1:04:44

on while I was in government. I

1:04:47

do not think that's a persuasive case. And the

1:04:49

whole point of this provision is to set up

1:04:51

the conditions under which Congress can legally challenge the

1:04:53

president's reliance on that argument, bring it to

1:04:55

the courts, consider the president

1:04:57

to defend his argument for his main court and accept

1:04:59

the consequences. And I think the executive branch will flinch

1:05:02

at that because they do not have a strong argument.

1:05:05

The problem with that is that there's one barrier this rule doesn't

1:05:07

overcome, and that's a standing barrier. It's not

1:05:09

really clear who would actually have the legal

1:05:11

authority to pursue a lawsuit challenging an unlawful

1:05:13

withdrawal from NATO because it's so removed from

1:05:15

most private citizens. I can imagine certain categories

1:05:18

of private citizens that might be able to

1:05:20

pursue that claim, but I'm not sure it's

1:05:22

an airtight standing case. I think the best

1:05:24

way to get standing would be for Congress

1:05:26

to authorize legislation for itself to pursue that

1:05:28

sort of claim. And notably,

1:05:31

because they hinge this on the appropriations clause

1:05:33

by holding off funding, there's actually a DC

1:05:35

circuit, not actually precedent because opinions were

1:05:37

officially withdrawn but recent DC circuit cases that suggest

1:05:39

that actually either the House or the Senate could

1:05:41

probably have standing to pursue that legislation. And so

1:05:43

that's the added step I think the House or

1:05:46

the Senate needs to take to make this airtight.

1:05:48

They need to authorize legislation, or pardon me, litigation

1:05:50

on their behalf enforcing this legal right and should

1:05:52

do it in advance so that the executive branch

1:05:54

knows as soon as we try doing this, it's

1:05:56

going to immediately go to the courts and to

1:05:59

lock in that separate to turn effect. All

1:06:02

that's to say is this just defends formal

1:06:04

US membership in NATO. It doesn't

1:06:06

tighten up the ability of forcing the

1:06:08

president to do anything under Article

1:06:10

Five other than the need to comply

1:06:12

with the treaty application. And under our constitution,

1:06:14

it's not really clear what Congress can do in that

1:06:17

regard. President's commander, chief, he's got a lot of authority.

1:06:19

Maybe Congress could appropriate funds and compel the president to

1:06:21

send them. I actually think there's a good argument that

1:06:23

they could do things like that, but

1:06:25

it's going to be constitutionally fraught. It's going to be a

1:06:28

source of argument. And it's a

1:06:30

much trickier legal question. So preserving membership doesn't

1:06:32

necessarily solve the Trump era concern, but it

1:06:34

does mean Trump can't withdraw the United States

1:06:36

from the Alliance and completely undermine it for

1:06:39

future generations and future presidents that may be

1:06:41

willing to engage it more seriously. Yeah,

1:06:44

I just want to emphasize the

1:06:46

point that Scott, you just made

1:06:48

at the end, which is that even

1:06:51

if this statute can

1:06:53

prevent the formal withdrawal

1:06:55

from NATO, it cannot

1:06:58

prevent Trump from

1:07:00

destroying NATO and doing

1:07:03

it by doing exactly

1:07:05

what he described himself

1:07:07

as doing probably falsely

1:07:10

in that story, which

1:07:12

is by encouraging

1:07:15

an attack on or

1:07:18

even just not discouraging an attack

1:07:21

on a NATO member state and

1:07:23

then refusing to honor our Article

1:07:27

Five obligations when invoked.

1:07:30

NATO, like most treaties,

1:07:33

is a confidence game. And I don't

1:07:36

mean that in a bad way, but

1:07:38

it works because people believe in it

1:07:41

and because countries act like

1:07:44

it's a real thing and it's

1:07:46

a real security guarantee, the moment

1:07:48

that you reveal it is not

1:07:51

a real security guarantee, it

1:07:53

becomes the emptiest of pieces

1:07:56

of paper. And so I

1:08:00

While I do

1:08:02

think a legislation that

1:08:05

discourages the attempt to

1:08:08

destroy the alliance is

1:08:10

very salutary, I

1:08:12

don't want to count on that legislation.

1:08:15

Trump is consistent about relatively

1:08:17

few things in life,

1:08:21

but one thing that he's very consistent

1:08:23

about is that he does not believe

1:08:25

in our overseas alliances and he does

1:08:28

not believe that our that

1:08:31

he believes that our allies are

1:08:33

scamming us for money and

1:08:36

that we're kind of suckers

1:08:39

for this exploitation of,

1:08:41

you know, rapacious

1:08:46

European countries and South Koreans

1:08:48

and Japanese who don't pay

1:08:50

their bills, which of course

1:08:53

Trump doesn't pay his bills, but that's a

1:08:55

different matter. I mean there's

1:08:57

some projection going on there, but

1:09:00

he is very clear about what

1:09:04

he believes and he's been quite consistent

1:09:07

about it over time and I

1:09:10

think we should take

1:09:12

him pretty seriously about that and

1:09:15

not rely, which is

1:09:17

not to say we should not

1:09:19

pass the second part of the

1:09:21

Scott saves NATO bill, but I

1:09:23

don't think we should rely on

1:09:25

these things to, you

1:09:28

know, tyrant proof or to

1:09:30

de-NATO proof the

1:09:33

executive branch. If Trump is elected and wants

1:09:37

to destroy NATO, he

1:09:39

does not need a lot of

1:09:41

formal authority in order to do

1:09:43

that. Well folks, that

1:09:45

is all the time we have to dig into these

1:09:47

topics this week, but this would not be rational security

1:09:50

if we did not leave you with some object lessons

1:09:52

to ponder over in the weeks to come. Alan, what

1:09:54

do you have for us this week? So

1:09:57

I have a really fun new

1:09:59

television. series, Mr. and Mrs. Smith,

1:10:01

that's on Amazon Prime. It's a, I

1:10:04

wouldn't call it a remake. I

1:10:06

mean, I guess it's kind of a remake

1:10:08

of a really fun and quite silly, but

1:10:11

I think quite charming movie from the early

1:10:13

2000s with Brad Pitt and Angelina Jolie, where

1:10:15

they play two spies

1:10:18

who unbeknownst to themselves. They

1:10:20

both play spies, but they don't really, the other

1:10:22

are spies and they're told to kill each other.

1:10:24

And that is really fun. This is somewhat different

1:10:26

version of that and it's like an eight episode

1:10:29

first season. It stars Donald

1:10:31

Glover, who many

1:10:34

will know from many wonderful things. If you're

1:10:36

a music fan, you'll know him as Childish

1:10:38

Gambino. If you're a community fan, you'll know

1:10:40

him from community. Also played a pretty great

1:10:43

young Lando Calrissian in the Han Solo

1:10:45

movie. So he created it. He

1:10:47

co-stars with Maya Erskine. It's super

1:10:49

fun. It's super weird in the way that

1:10:51

Donald Glover is super weird, but

1:10:53

it's my kind of weird. So I really,

1:10:56

really recommend it. It's kind of, you

1:10:59

know, it has its fun action moments,

1:11:01

but it's really about if you had

1:11:03

two spies who had to live

1:11:06

together and work together, like what would that actual interpersonal relationship

1:11:08

be like? And it is pretty great.

1:11:11

I love Maya Erskine from her series, Pen 15, which is

1:11:13

one of the things that's beautiful. Oh, I'm so glad you

1:11:15

gave a shout out to that. Oh, I love Pen 15.

1:11:17

It's so good. I haven't seen it, but I do want

1:11:19

to check it out now. Physically painful to watch. It is

1:11:21

painful to watch. Especially as the

1:11:23

only former middle school girl, I will

1:11:26

say. Yeah. Well, anybody who's gone through

1:11:28

puberty would play that very painful to watch. I don't

1:11:30

know. I was a middle school boy. I'm not sure

1:11:32

it's like that much better. It

1:11:35

is brutal, but so funny. And they're so funny

1:11:37

because part of the premise is that her and

1:11:39

her, I think writing and production

1:11:41

partner that are adult women playing middle

1:11:44

school girls with actual middle school age

1:11:46

students and other actors and

1:11:48

actors, it's just phenomenal. So I'm excited to

1:11:50

see her in a dramatic ish. So

1:11:52

like mostly dramatic role in this. I definitely am going to

1:11:54

check that out. Quincea, what do you have

1:11:57

for us this week? I would like to recommend

1:11:59

a. incredibly funny

1:12:01

New York Times magazine article

1:12:03

entitled how Mark Meadows became the

1:12:06

least trusted man in Washington which

1:12:08

is about his rise and fall and the

1:12:13

trail of sadness that he has left behind

1:12:15

him mostly it seems because he has

1:12:17

a habit of promising

1:12:20

various incompatible things to different people which

1:12:22

did not serve him well when he

1:12:24

was Trump's chief of staff. My

1:12:27

personal favorite anecdote is a story

1:12:29

in here about how after he

1:12:32

first won his congressional seat in 2012 and

1:12:35

I quote he promised two different aides that

1:12:37

they would be his chief of staff only

1:12:39

to award the job to a third person

1:12:41

and then cried at one of them when they

1:12:44

could what a legend at it so

1:12:46

as a conflict avoided in person I

1:12:49

feel a little uncomfortably seen there

1:12:51

although I've never gone quite that far

1:12:54

but I highly recommend it it's

1:12:56

a very fun read and quite illuminating

1:12:58

about the former chief of staff. Wonderful.

1:13:02

Well for my object lesson this week we're just coming

1:13:04

off the Super Bowl guys it is the Super Bowl

1:13:06

is my Super Bowl if you will every year it's

1:13:09

a big event I look forward to I usually

1:13:11

cook I just made a big giant pot of nachos

1:13:13

made a bunch of chili I had

1:13:15

a few friends over with little kids that then

1:13:17

proceeded to distract us from actually watching very much

1:13:19

of the actual Super Bowl unfortunately but

1:13:22

I always enjoy it but it also makes me sad

1:13:24

in a way that's only comparable to the day after

1:13:26

Christmas because it means football seasons

1:13:28

over and I will not have sports I actually

1:13:30

enjoyed to watch for a long time at least until

1:13:32

I get into basketball baseball but I

1:13:34

will say there's one thing that gives

1:13:36

me such a joy at the end

1:13:38

of football season which is as somebody

1:13:40

who really follows a lot of like

1:13:43

the inside news and little details there's

1:13:45

a phenomenal set of videos that a

1:13:47

woman named Annie Agar puts together where

1:13:49

she is essentially playing the head

1:13:51

coaches or representatives of all the different teams

1:13:54

in a meeting together having a conversation with

1:13:56

herself she does this repeatedly over the course of

1:13:58

each season I think she's now like a correspondent for some

1:14:01

sports news, I think stadium news service.

1:14:03

But they're really, really exceptionally funny. And particularly if you

1:14:06

get all the inside jokes, and

1:14:08

things that you follow the news closely enough over the

1:14:10

course of the season. They're just phenomenal. I've really, really

1:14:12

gotten into this season, I think they're great. So I'm

1:14:14

gonna give a shout out to her, check them out

1:14:16

on YouTube or Twitter, or you might find them Annie,

1:14:19

A-N-N-I-E-A-G-A-R. They're very clever and very funny. If you are

1:14:21

a sports fan, if you're not a sports fan, then

1:14:23

I can make a lot of sense to you. But

1:14:26

you'll get like a one or two of the jokes.

1:14:28

And like, if nothing else, they're like impressive production beats

1:14:30

for somebody who appears to be doing this out of

1:14:32

their, you know, closet at home. Ben,

1:14:35

I'll hand it over to you. Bring us home. What do

1:14:37

you have for our object lessons this week? So

1:14:39

as those of you who

1:14:42

subscribe to my newsletter, Dogshirt

1:14:44

Daily, know I have been

1:14:46

on a long term

1:14:49

quixotic campaign to

1:14:52

embarrass the New York

1:14:54

Times into stopping using

1:14:58

rhetorical questions as headlines.

1:15:02

They're stupid. The answers

1:15:04

to almost all of them are

1:15:06

obvious. They often don't really suggest

1:15:08

what the story is about. And

1:15:11

I didn't realize until the other day

1:15:13

when I looked at the New York

1:15:15

Times website that I was

1:15:17

actually on a quest to

1:15:20

find the dumbest headline question

1:15:24

ever written. And I didn't

1:15:26

realize this until the other day

1:15:28

when I found the

1:15:31

dumbest ever headline question

1:15:33

in the history of the New York Times. And

1:15:35

I'm just going to read it to you. The

1:15:39

headline of a real

1:15:41

article, I swear I am not making this

1:15:43

up, is Taylor Swift's

1:15:46

next album is the Tortured

1:15:48

Poets Department. What

1:15:50

do tortured poets think? And

1:15:53

I just thought the Holy Grail

1:15:55

has been obtained. I

1:16:00

can retire this particular campaign at

1:16:02

this point. But is

1:16:05

there anything that would be more tortuous to a

1:16:08

poet serious enough to be tortured over it than to

1:16:10

be asked the question of the New York Times finally

1:16:12

and it's about saliary florist? Well,

1:16:14

I'm not sure there is. How do you

1:16:16

find tortured poets? Like, seeking a poet. Hey,

1:16:18

by the way, are you, are you tortured?

1:16:21

How are we defining tortured? Are you totally

1:16:23

a class level tortured? Are you- Are

1:16:26

you stretched on a rack? Right,

1:16:28

and this of course to bring

1:16:30

it back to lawfare, what about

1:16:32

those poets whose treatment amounts to

1:16:35

cruel and human degrading treatment, but

1:16:37

not to torture, right? Like if

1:16:39

you- Or if poets that are

1:16:41

being interrogated in an enhanced way. Like it's just

1:16:43

so stupid. If you've merely waterboarded the poets, you

1:16:47

know, I would sell them like a lot of

1:16:49

questions here that we got to work through. Wow.

1:16:52

Well on that note, that brings us to the

1:16:54

end of this week's episode. But

1:16:56

of course, Rational Security is a production of

1:16:58

Lawfare, so be sure to visit us at

1:17:00

lawfaremedia.org for our own tortured headlines,

1:17:03

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1:17:05

that may no longer be the case for much

1:17:07

longer. And while you're there, you

1:17:09

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1:17:11

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1:17:14

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1:17:16

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