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That's amazon.com/news ad free to catch

0:20

up on the latest episodes without

0:22

the ads. Anna,

0:27

have you been enjoying your time

0:29

in Fulton County Divorce Court? Do

0:31

you live there now? Do you

0:33

have a sleeping bag tucked into

0:35

a corner of the courthouse? I

0:37

mean, I honestly think that the

0:39

Cobb County Superior Court clerks would

0:41

not be surprised if I moved

0:43

in, but we're finally done

0:46

and I'm here to talk about it. I'm

0:48

so grateful you've been following this because

0:51

I've been trying to avoid

0:53

it as much as humanly possible to be

0:55

completely honest. Yeah, it hasn't

0:57

been fun. I've got to admit. Why

0:59

hasn't it been fun? I mean, it's so juicy. Well,

1:02

you know, Alan, when you sign

1:04

up to report on

1:07

the alleged, you

1:10

know, attempts of a former president

1:12

to overturn democratic election, and then

1:14

you end up

1:16

in a

1:19

situation that feels more like the Real

1:21

Housewives of Atlanta than it's

1:23

a little bit odd. This

1:26

is still sounding fun to me. Are

1:29

you Tyler? Are you volunteering and you can go

1:31

down to Atlanta anytime you want and relieve Anna?

1:34

Well, it would be a great homecoming. I could

1:36

stay with my grandma, have matzo ball soup at

1:38

night. Yeah, sign me up. No,

1:41

there's like a definitely an element of

1:43

it that's very, you know, are you

1:45

not entertained? Anna,

1:49

how about this? You can go to my grandma's house

1:51

and she can make you matzo ball soup and that

1:53

will make everything better. That'd

1:55

be fantastic. Is your grandma, what's

1:58

her matzo ball soup like when I... compares

2:00

to the matzo ball soups

2:02

of other grandmothers. Well,

2:04

obviously, it's the best in the world. Don't

2:06

ask a man to criticize. Grandmother's

2:09

matzo ball soup. Tyler's grandmother listens

2:11

to rational security, and she would be

2:13

upset. Tyler's grandma saw me on TV

2:15

once, and it was honestly the

2:17

best moment of my life when Tyler texted

2:20

me and said, my grandma said you did

2:22

a good job. Well, I think

2:24

you've earned your matzo ball soup. Seriously, we gotta get

2:26

Anna to soup next time she's in Atlanta. I

2:30

would say my object lesson is the recipe, but

2:32

obviously, that's a closely guarded family secret. The

2:36

real question is, does your grandma use

2:38

the mix, or does she start with

2:40

actual matzo? Oh, I

2:42

think like all good grandmas, she uses the mix.

2:45

The Manashevitz mix. Yeah, exactly. The

2:47

Rosensteins are a proud Manashevitz mix people. Yeah,

2:51

real Jews know. Well,

3:01

hello, and welcome to rational security. I am Alan Rosenstein,

3:04

and I'm here with one of my regular co-hosts,

3:08

Quinta Jurassic. Hello, and guess who's not here? Guess

3:11

who's not here, Scott Anderson, who is currently

3:13

on parental leave. Congratulations,

3:16

Scott. His baby is extremely cute.

3:19

Hopefully, he's having a good time, and by good time, I mean

3:21

waking up every 90 minutes, because

3:23

as I myself discovered four months ago, life

3:27

choices have consequences. Even

3:30

if they're very cute consequences. But have no

3:32

fear, listener. We have a wonderful guest with

3:34

us from

3:36

the Lawfare Clubhouse. Managing

3:38

editor Tyler McBride is here. Hello. And

3:41

legal fellow and Atlanta soap opera

3:43

correspondent, Anna Bauer,

3:45

is also joining us. Thanks, Anna.

3:47

Hey, thanks for having me. Yeah,

3:50

thanks for coming on for the first segment.

3:53

So we're going to call today in honor of Tyler's

3:55

grandma, the

3:58

Tyler's grandma. grandma's

4:00

matzo ball soup edition. I'm really jealous.

4:02

I really want to try it now. Can you

4:05

bring some in for all of us one of these days, Tyler? Definitely.

4:07

I think actually another better option is we all

4:09

fly out to Atlanta to visit her and

4:12

have it in person. That seems like a good practice. Party

4:14

at Tyler's grandma's house. I love it. Well,

4:16

we have some great topics in

4:18

national security news to talk about

4:21

today. Topic number one, no

4:23

V Wade. The long saga

4:26

of the personal relationship between Fonny Willis,

4:28

the Fulton County district attorney prosecuting Donald

4:30

Trump for election interference, and Nathan Wade,

4:32

the prosecutor Willis put in charge of

4:35

the case, hit an inflection point last

4:37

week when Judge Scott McAfee, who is

4:39

overseeing the criminal case, ruled that although

4:42

there was no actual conflict of interest,

4:44

the appearance of impropriety remains. He

4:46

ordered Willis to either recuse herself from the

4:48

case or remove Wade from his role as

4:50

prosecutor. Wade promptly resigned, clearing the way for

4:52

the case to continue. Is this

4:55

the right resolution to the controversy? And what

4:57

does it say about the future of the

4:59

Fulton County case, especially if Trump appeals and

5:01

tries to force Willis's disqualification? Topic

5:04

two, pleading the fifth circuit

5:07

in a sign that even the conservative

5:09

justices may be losing patience with the

5:11

fifth circuit. Missouri received a chilly reception

5:14

and oral argument on Monday when it

5:16

tried to defend a circuit opinion, preventing

5:18

the government from virtually any communication with

5:20

social media companies about removing misinformation and

5:22

harmful content. How is the

5:25

Supreme Court likely to rule and what should

5:27

the rule be when it comes to concerns

5:29

about government jawboning? And

5:31

topic number three, sigh. Oops. Thank

5:34

you, Tyler, for that one. That was really, really

5:36

good. Reuters has reported that during the

5:38

Trump administration, the CIA engaged in an

5:40

influence operation on Chinese social media to

5:43

spread negative information about Xi Jinping and

5:45

other Chinese leaders. Was it

5:47

effective? Was it a good idea? And

5:49

what should U.S. intelligence priorities be with

5:51

regard to China? For the

5:53

first topic, I'm going to hand it over to

5:55

me to talk about Nathan Wade's

5:58

resignation. And as I like to do

6:00

when we have an expert on the

6:02

topic. I'm not going to do

6:04

an intro. I'm just going to turn it

6:06

right over to the expert. Anna, you're joining

6:08

us for this first segment. So just set

6:10

the stage for listeners who have not been

6:12

tuned in to every twist and turn of

6:14

this soap opera over the last several months.

6:16

What is the conflict here? What is the

6:18

issue? What did Judge McAfee say? And what's

6:20

happening next? Right. So

6:22

this conflict arose back in

6:24

January, right before the

6:26

pretrial motion deadline for this

6:29

case. It seemed for many

6:32

months that everything was going very well

6:34

for the prosecution. And then Ashley

6:36

Merchant, who represents Mike Roman in the

6:38

case, who is one of the co-defendants

6:40

of Trump, who is accused of

6:43

attempting to overturn the 2020 election,

6:46

she filed this motion in

6:49

which she argued that Fawny

6:51

Willis was engaged in a

6:53

personal romantic relationship with her

6:55

special prosecutor, Nathan Wade. And

6:58

as a part of that

7:00

relationship, it was alleged that

7:02

she received luxurious vacations that

7:04

were paid for by Wade,

7:07

that he paid for dinners, that

7:10

she received these kind of indirect

7:12

financial benefits, and that as a

7:14

result of those benefits, she

7:18

received this kind of incentive to

7:20

continue to prosecute the case against

7:22

these individuals as long as possible.

7:25

Nathan Wade, of course, you have to

7:27

recall, is someone who's not a salaried

7:29

employee. He is paid by the hour.

7:32

And so as a result, there was this argument

7:35

that she was paying him, and then as

7:37

a result, getting this kind of kickback scheme.

7:40

As a separate issue that arose

7:43

related to this, about

7:45

a week later, we're not

7:47

totally separate, somewhat related

7:50

to it, but a separate legal

7:52

grounds arose for her disqualification about

7:54

a week after this motion was filed.

7:57

The prosecution had been quiet. about

8:00

everything and then all of a sudden Bonnie

8:02

Willis goes to this historically

8:06

black church on a Sunday and

8:08

gives a speech and during

8:11

that speech she kind of makes

8:13

these veiled references to the defendants

8:15

and to this motion that had

8:17

been filed in which she you

8:19

know said that they were you

8:21

know had made these attacks as

8:24

a kind of racially motivated strategy

8:26

defense strategy at least

8:28

that's what it seemed to imply you

8:30

know her speech was very vague about

8:32

who it was she was actually talking

8:34

about was she just talking generally about

8:37

critics who had you know come out

8:39

against her in the wake of this

8:41

motion being filed all of that you

8:43

know she didn't deny that she'd had

8:45

a relationship with Wade and focused on

8:48

his qualifications as his

8:50

prosecutor instead so that speech

8:54

itself gave Trump some

8:56

additional ammo because he then filed

8:58

a motion in which he adopted

9:01

this motion to disqualify and then

9:03

said you know in addition to

9:05

this conflict of interest that was

9:07

created by Bonnie Willis

9:09

hiring her alleged boyfriend she

9:12

also made this speech that

9:14

Trump argued was inflammatory and

9:17

kind of was

9:19

what's called forensic misconduct under

9:21

Georgia law that is

9:23

a grounds for disqualification that refers

9:25

to extrajudicial statements in which a

9:27

district attorney you know makes comments

9:30

about the accused that kind of

9:32

implicates their guilt or innocence or

9:34

paints the jury pool in some

9:36

way through those public comments so

9:38

those were the two grounds that

9:40

really set up this motion it

9:43

was was there a conflict of

9:45

interest related to the relationship with

9:47

Wade and was there forensic

9:49

misconduct that would disqualify Bonnie Willis

9:52

and so what did Judge McAfee who was

9:54

overseeing this case what did he ultimately decide

9:57

with respect to these issues last week So

10:00

Judge McAfee is very interesting

10:02

because Judge McAfee ended up

10:04

kind of splitting the baby in a

10:06

sense. He

10:09

said, you know, he reviewed the evidence

10:11

that had been submitted. After

10:14

all these motions were filed, there

10:16

was an evidentiary hearing, there were

10:18

witnesses. Ben and

10:20

I wrote a piece in which

10:22

we analyzed the evidence and actually

10:25

kind of, it was very similar

10:27

to how McAfee ended up looking

10:29

at the evidence, but he basically

10:31

said, you know, I

10:33

don't think that this, the evidence has

10:35

shown that there was a conflict of

10:38

interest. You know,

10:40

even though there definitely was money that

10:42

changed hands between the two, it

10:45

didn't seem like the evidence

10:47

had, the defendants had met their

10:49

burden of establishing that there was

10:51

an actual material, pecuniary gain or

10:54

benefit that had been received by

10:56

the district attorney as a result

10:58

of the relationship. And

11:00

then he also looked at, you know, at one

11:03

point, all of this kind

11:05

of shifted to this question of whether or

11:07

not Fawny Willis and Nathan

11:09

Wade were being totally truthful about when

11:12

their relationship started. Did it start before he

11:14

was appointed a special prosecutor? Did it start

11:17

afterward? He looked at that and

11:19

said that although there were questions

11:21

that remain about how

11:23

candid they were in

11:26

their testimony and throughout the

11:28

process about the relationship, he

11:30

still found that it did

11:32

not amount to a finding

11:35

that, you know, that basically the

11:37

relationship did start before they said

11:40

it did. So

11:42

he ultimately held no actual

11:44

conflict of interest that would

11:46

require a mandatory disqualification of

11:48

an elected district attorney under

11:50

Georgia law. However,

11:53

he did something very interesting in

11:55

which he said, but... Looking

11:58

at the way Georgia courts... have talked

12:00

about a different standard where

12:02

you look at not just whether

12:05

there's an actual conflict but an

12:07

appearance of impropriety. He

12:10

looked at case law on that where Georgia

12:12

courts have kind of referenced the need to

12:15

get away from any kind of appearance

12:17

of impropriety by a district attorney. And

12:20

he said that if there is an appearance

12:22

of impropriety, I can impose

12:25

some sort of discretionary remedy

12:27

that doesn't necessarily have to

12:29

mean disqualification of the district attorney.

12:32

And here, he said, I do find

12:35

that there is an appearance of impropriety.

12:38

And as a result, he basically gave

12:41

her an option. He

12:43

said, either you can

12:45

have Nathan Wade withdraw from

12:47

the case to get

12:50

rid or negate this appearance of

12:52

impropriety, or you can

12:54

withdraw your entire staff from

12:56

the case and yourself and

12:58

hand the case over to

13:01

another district attorney's office or

13:03

a different special prosecutor who

13:06

would be appointed by a nonpartisan

13:08

state body. And of

13:10

course, that's kind of a false choice, right?

13:13

Because it basically means get rid

13:15

of everyone, including Nathan Wade, or

13:17

get rid of Nathan Wade. And

13:20

so by, I think it

13:22

was around 3 o'clock that

13:24

afternoon, Nathan Wade had resigned

13:27

and they ended up filing

13:29

that resignation correspondence. Additionally,

13:32

there's the separate matter of

13:34

the forensic misconduct issue that I

13:36

mentioned, which relates to mainly the church

13:38

speech. And that part

13:40

of the opinion is interesting. He found

13:42

that the church speech

13:44

did not amount to forensic

13:47

misconduct, as it has been

13:49

kind of described in Georgia

13:51

case law, although he noted

13:53

that there's not really a

13:55

whole lot of descriptions of

13:57

forensic misconduct in Georgia case

13:59

law. He said it

14:01

was pretty ambiguous who exactly it was

14:03

that Fawny Willis was talking about. Was

14:05

she talking about the defendants or was

14:07

she talking about, for example, the county

14:09

commissioners who had kind of criticized her

14:12

in the days after this motion was

14:14

filed. He focused

14:16

on those ambiguities within the speech

14:18

because she never named the defendants

14:20

and never said Trump or Mike

14:22

Roman or whatever. And

14:25

so for that reason, he found that she

14:27

would not be disqualified on the basis of

14:29

forensic misconduct as well. But he

14:32

did say her comments were legally

14:34

improper and that it may

14:36

be the time for the defense

14:38

to seek a gag order even

14:40

of seeking to

14:43

gag the prosecution from

14:45

making any public statements in an

14:48

extrajudicial context, which is very interesting.

14:51

Something I've never seen a judge suggest.

14:55

And really, even though this was a

14:57

victory for Fawny Willis, it seems

14:59

like those are the types of comments

15:01

that really made it just a very

15:03

partial victory and ultimately did

15:06

not reflect well on the prosecution.

15:09

Okay. So that's brought us up

15:11

to this morning when

15:14

we just found out that Judge

15:16

McAfee has authorized an appeal

15:19

of his decision. So explain what's going on

15:21

there and what the next steps are. Right.

15:25

So as soon as this decision came out from

15:27

Judge McAfee, there was a sense that it would

15:31

be very likely that this would be

15:33

an order that the defendants would seek

15:35

to appeal. Of course,

15:37

in Trump's case, a big part of

15:39

the strategy is to try to delay

15:41

the trial beyond the November election. And

15:44

so that is a part of it. But

15:46

also, there was some language in this order

15:48

that seemed like it could be pretty friendly

15:51

to the defendants if they did seek an

15:53

appeal. And so there

15:55

was a sense that they would do

15:57

that. And earlier this week, they did

15:59

the... first step in the Georgia procedure

16:01

to seek an appeal of this type

16:04

of order, what you have to do

16:06

is seek a certificate of immediate review

16:08

from the trial court judge. So, this

16:11

isn't something that's automatically appealable before trial.

16:13

You have to go to the trial

16:15

court judge and say, hey, we'd like

16:18

to appeal. He then has to issue

16:20

this certificate saying that you can appeal.

16:23

And then, within 10 days after

16:25

that certificate being issued, there's the

16:27

second step which is going to

16:29

the Georgia Court of Appeals and

16:31

filing your application for appeal. Today,

16:35

we learned that the defense

16:37

has cleared that first hurdle.

16:39

They've gotten or they've received

16:41

a certificate of immediate review

16:43

from Judge McAfee. However,

16:46

the order, importantly, by

16:49

Judge McAfee says that the

16:51

trial court proceedings will not

16:53

be stayed while they

16:56

appeal. Of course, that

16:58

could change based on what the Court

17:00

of Appeals does. The Court of Appeals,

17:03

after they file their application, has 45

17:05

days to decide whether to

17:08

take up the appeal or to decline

17:10

it. I think it's very likely that

17:12

these defendants will ask the Court of

17:14

Appeals to stay the proceedings

17:16

below if they do decide to take

17:19

it up. And it would

17:21

be within the Court of Appeals'

17:23

power to say to the trial court judge,

17:25

I know you said that you aren't

17:27

going to stay the proceedings, but we're directing you

17:29

to do so. And

17:32

Judge McAfee would have to put everything

17:34

on pause. But right now,

17:36

the case continues. He said that he

17:38

would continue to rule

17:40

on a bunch of pending motions. We

17:43

can still have a lot of outstanding

17:45

pending motions in this case. So

17:47

it sounds like McAfee is going to continue

17:49

to work through those. And the case continues,

17:52

well, at least for now, while this appeal

17:54

goes up to the Court of Appeals, and

17:56

they will have to decide whether to take it up

17:59

If they do., You a probably. Could

18:01

be months before we I hear

18:03

anything from the court of appeals

18:06

as to you know what stay

18:08

actually will do. Although they could

18:10

always expedite that, the appeal and

18:12

and though more quickly than they

18:15

usually do. And. I just had

18:17

a quick follow up about. The. Forensic Misconduct

18:19

question. You. Mentioned that they're

18:21

only a few descriptions existing in

18:23

Georgia Law Are there any clear

18:26

lines here? So in other words,

18:28

had funny Willis said acts in

18:30

the speech that would have clearly

18:32

constituted forensic misconduct. What is it

18:34

that the boundaries here. Yeah.

18:36

So I think said one thing that

18:38

if she would is sad it is

18:40

if she would have said yell. The.

18:42

Defendants filed this most and

18:44

and it alleges x y

18:46

Z but they are just

18:49

racist and they are guilty

18:51

and assists at. You know

18:53

that is the kind of

18:55

saying that would almost certainly

18:57

be something that would be

18:59

disqualifying because you know this

19:01

the church that she was

19:03

an that setting it was

19:05

one in which like a

19:07

lot and it's a very

19:10

like it's a very well

19:12

known historically. Black Church Atlanta. Ah

19:14

the people who go they are

19:16

very well and who watch the

19:18

services online like the thousands of

19:21

people very well could be people

19:23

who are selected to be on

19:25

that jury. Ah an idea around

19:27

forensic misconduct is that you can

19:30

as a district attorney be going

19:32

out and saying to at the

19:34

jury pool in public These people

19:36

are guilty and just really kind

19:39

of. You know impugning there are

19:41

character by isn't making. These extra

19:43

judicial statements. Outside the context

19:45

of the case itself. So

19:47

on. Yeah, that. Be something

19:50

that would be pretty clearly disqualifying.

19:52

Under Georgia law. I have to

19:54

say at the beginning of all this I think.

19:57

There. Was. a

19:59

say in in distinct among commentators, maybe

20:01

specifically among those who do not practice

20:04

law in Fulton County, to

20:06

cut Fonny Willis some slack on this

20:08

one and say, you know, it's a

20:10

smear, right?

20:13

I will say that Andrew Fleishman, who is

20:15

a defense lawyer in Fulton County who has

20:17

come on the Lawfare podcast previously, was critical

20:19

from the start, so points to him. But

20:22

it does seem to me that like

20:24

just the longer this has gone on,

20:27

the worse the DA's office looks.

20:29

Like I think I have no problem

20:31

with McAfee's ruling. The

20:34

sort of not outright disqualifying makes

20:36

sense to me under the standard,

20:38

but it just like, it just

20:40

looks really, really bad. Like,

20:43

is there anything, any

20:45

redeeming story to be told

20:47

here about the DA's office?

20:49

Or is this just like,

20:52

wow, they really screwed up? I

20:54

agree with you, Quinta. I think that

20:56

a lot of this looks really bad

20:58

at the most basic level. And I

21:01

think that this is a backstory a

21:03

lot of folks maybe won't know or

21:05

really kind of grasp is that Fonny

21:07

Willis came into office in 2020. She

21:10

was elected in 2020 and then,

21:13

you know, started her position in

21:16

2021. But the person, her predecessor,

21:18

Paul Howard, is a man whose

21:20

tenure in office was plagued

21:23

by scandal because of his

21:25

conduct in which

21:27

he was accused of sexually

21:30

harassing employees. Clearly,

21:32

this was a consensual relationship that

21:34

Fonny Willis and Nathan Wade had.

21:36

So it's very different. But, you

21:38

know, Fonny Willis came

21:40

into her position saying

21:42

things like, you know, I will

21:45

never be like Paul Howard and,

21:48

you know, have a relationship with a

21:50

subordinate. And at the very least, you

21:52

know, Nathan Wade was her subordinate. Yes,

21:56

he was a man who has,

21:58

you know, his own

22:01

success and his own qualifications. They

22:03

are peers and colleagues, but you

22:05

cannot deny the fact

22:07

that there is something ethically

22:10

questionable about the

22:12

fact that she

22:14

was engaged in a relationship with

22:16

someone who was a subordinate and

22:18

was not disclosed to any of

22:20

the relevant human resources people or

22:22

something like that. So

22:24

I think that there is that at its most basic

22:26

level, something that

22:29

is really just does not

22:31

look good. And then as the kind

22:33

of evidence you're hearing and

22:35

all of that went on, things

22:38

really did not continue to

22:41

get any better for the DA's office. That

22:43

said, I mean, I

22:46

do think that, you

22:48

know, putting aside all of that, this

22:50

case has been one that

22:52

other than

22:56

this, the DA's office

22:58

and maybe some other, you

23:00

know, questionable public statements that

23:02

Fawny Willis was making because

23:04

you really are as

23:06

a prosecutor, you don't like

23:09

to see prosecutors going out and making

23:11

public statements about the case that they're

23:13

prosecuting. It's usually just not a good

23:15

idea. And there were

23:17

other instances even before this in which Fawny

23:19

Willis, you know, maybe didn't

23:22

have the same type

23:24

of restraint that other prosecutors

23:27

at the federal level, for example, have.

23:29

But then again, she is an elected

23:31

official. So she

23:34

has some different considerations at

23:36

play. But, you know, regardless,

23:38

they had handled this case

23:40

pretty well, you know, they

23:43

had a lot of wins for months and

23:45

months. And so I think

23:47

that that I guess maybe is something

23:50

that is redeeming is the kind of

23:52

history of handling the case

23:54

pretty well for a long time. But

23:57

this, I do think is something that was

23:59

really, really interesting. really questionable, so I

24:01

think that's right, but I'd be

24:03

interested to hear what other folks think,

24:05

Tyler and Alan. Yeah, I

24:07

mean, I don't want to paint with a broad

24:09

brush with respect to sort

24:12

of local and state and local prosecutors

24:14

versus federal prosecutors, but I will say

24:16

this does not give

24:19

me a lot of confidence in the

24:21

idea that, you

24:24

know, we want federal officials, especially high

24:26

level ones, especially the president, necessarily

24:28

prosecuted by state and local

24:31

prosecutors, right? It just feels like

24:33

the elected nature of those offices,

24:35

the potential wide variance

24:38

in quality, it

24:40

just makes me, and I got to say,

24:43

I've always been somewhat skeptical of the idea that

24:45

you want to expose

24:47

presidents to state and local

24:49

prosecution for a lot of these reasons,

24:51

and this performance has

24:53

definitely made that skepticism even

24:56

more skeptical. Yeah, and I kind of wonder

24:58

to what extent some of

25:00

this could have been the public

25:03

kind of perception of all of this would have been

25:05

different with a different communication

25:08

strategy by the DA's office.

25:10

You know, there was a

25:12

lot of communications PR failings

25:14

here, I think, like after

25:17

Ashley Merchant filed that motion, Fonnie

25:19

Willis went out and did the

25:21

church speech where she didn't really

25:24

address allegations, but kind of did,

25:26

and then like a month went

25:28

by before the state filed its

25:30

response. There was just like

25:32

a really kind of

25:35

lack of, you

25:37

know, that vacuum really allowed

25:39

people to kind of fill

25:41

the space with a lot

25:43

of assumptions and allegations and

25:45

whatnot. And

25:48

then, you know, even as recently as after Nathan

25:50

Wade resigned, I don't know if you guys told

25:53

this, but Nathan

25:55

Wade was supposed to do meet

25:57

the press after he resigned. was

26:00

poorly thought of. The Council for a Family

26:02

Emergency. I mean, and

26:04

so it's just things like that where

26:06

you are kind of like, what,

26:09

you know, this is

26:11

not great judgment in terms of

26:14

just the PR aspect of

26:16

it all. And

26:18

you know, the Trump team and Roman's team

26:20

and everyone else has taken advantage of that.

26:24

And it's hard to blame them, honestly. I

26:26

mean, that's the thing. I mean, I think,

26:28

you know, with Trump's 87 different legal issues,

26:30

we've seen so much bad lawyering. We've seen

26:32

so much bad faith, you know, nonsense lawyering.

26:35

But I think I got to say, when it comes to this

26:37

one, you know, it's

26:39

hard to blame them for dragging

26:41

the DA through the cold on this one. No,

26:44

I and I think that, you know,

26:47

it's very interesting to me that I

26:50

actually think that the most

26:52

effective defense strategy that Trump has had

26:54

in any of his cases has been his Fulton County

26:56

team. They have managed

26:58

to somehow avoid making some of

27:00

the more ridiculous statements

27:03

and briefs that his

27:05

federal teams and his New York

27:07

team has filed

27:10

in those cases. And

27:13

you know, Steve Sadow is

27:15

a really well respected attorney

27:17

in the Atlanta area. He's

27:19

done, I think

27:21

that he's done what

27:24

any good defense attorney would do in

27:26

this case, which is kind of seize

27:28

the moment. And you know, it's really

27:32

unfortunate that the

27:34

strategy has, you

27:37

know, distracted from the alleged

27:39

crimes here that are very

27:42

serious. And especially in the lead

27:44

up to the 2024 election is

27:46

something that we should

27:48

be paying attention to, but you

27:50

kind of can't blame them because, you know,

27:54

the district attorney's office is

27:57

at fault here in some sense. Well,

28:00

as you pointed out, this saga

28:02

is amazingly not over yet, depending

28:04

on how these appeals go. And

28:07

so we will have you back to talk about it.

28:09

But for now, we will let you go continue your

28:11

gallivanting around the country covering these cases. Thanks,

28:13

Anna, for stopping by. Thanks. Wait,

28:16

I have one question. It's for Tyler. Did

28:18

I earn my matzo ball soup? I

28:21

think you earned not only one, but two

28:23

helpings of matzo ball soup. Yes,

28:25

amazing. Great. Well, thanks,

28:27

guys, for having me. I appreciate it. Well,

28:30

in keeping with weird stuff coming

28:32

out of the South, we

28:34

are going to journey westward to

28:37

the Western District of Louisiana. Back

28:40

in May 2022, in

28:42

a case that was originally filed as Missouri v. Biden,

28:45

the attorneys general of Missouri and Louisiana, along

28:47

with private plaintiffs, alleged

28:49

in a district court that

28:52

federal officials coerced social media companies into

28:54

removing certain content or demoting it in

28:56

people's feeds on topics ranging

28:59

from COVID-19 to election security, among

29:01

many other topics that we can get into.

29:05

Fast forward to July 4 of last

29:07

year, when the district judge ruled in

29:09

favor of the plaintiffs issuing a preliminary

29:11

injunction, which essentially prohibited government officials

29:14

from communicating with social media

29:16

companies, as they had been alleged

29:18

to do. Fast forward once

29:20

more to October of last year,

29:22

when the Supreme Court agreed to hear the

29:24

case, now known as Mercy v. Missouri. And

29:28

fast forward even more to Monday of this

29:30

week, March 18, when we heard, sorry, the

29:33

Supreme Court heard oral argument in the

29:35

case. There's a lot of interesting issues

29:37

here, I think the primary one

29:39

being this sort of line between

29:42

persuasion and coercion on the side of

29:44

the government in terms of influencing essentially

29:47

speech on social media platforms. And

29:49

I want to get into that. First, Quinta, I'm

29:52

curious, I know that you listened in on oral

29:54

argument on Monday. Could you

29:56

give us a bit of a play by play

29:58

or your impressions of how the the justices

30:01

viewed the case and how they might rule. So

30:04

as you say, important context here is

30:06

that this case is, it's

30:09

weird, is the most polite

30:11

thing I could say. The

30:13

most honest thing I could say would

30:15

be that it's completely lunatic. And

30:18

what I mean by that is that

30:21

the fact pattern here is just

30:24

weird as hell and kind of

30:26

made up. So there

30:28

was a point in oral argument

30:30

where Justice Sotomayor said to counsel

30:32

for Louisiana, Benjamin

30:35

Aguinaga, counselor, I have

30:37

such a problem with your brief, and

30:40

then proceeded to say, you know,

30:42

it attributes things that happened to

30:44

other people, to particular people,

30:46

it confuses all kinds of

30:48

statements, etc., etc. And

30:51

Aguinaga seemed genuinely kind of

30:53

chastened, you know, sort of

30:55

bent over himself to apologize.

30:58

The issue here is that the district

31:01

court in this

31:03

kind of incredibly long process

31:06

down at that level of court reached

31:10

conclusions in this injunction

31:13

that it issued, which prevents a

31:15

sort of large swaths of the

31:18

government from communicating with social media

31:20

companies that just massively distort what

31:22

was actually happening. And

31:25

sort of twists what

31:28

was in some instances government

31:30

outreach that arguably crossed the

31:32

line. In some

31:34

instances, government outreach that genuinely was sort

31:36

of the government working together with platforms

31:39

to, you know, say, hey, there's, you

31:41

know, something really bad going on here

31:43

that you might want to know about

31:46

into a kind of vast left

31:48

wing conspiracy to censor

31:50

conservatives, including, as Sotomayor was

31:52

kind of pointing out, and

31:54

as Justice Kagan also dug

31:56

into a bit, instances where,

31:58

you know, someone's Post

32:00

was taken down by Facebook months

32:03

after there was a communication between

32:05

the government and Facebook about a

32:07

sort of semi-related issue which the

32:09

plaintiffs are now alleging is

32:12

directly attributable to the government

32:14

itself. So the

32:16

facts are all over the place

32:18

here. The Fifth Circuit sort of

32:21

repeated some of that, cut down a little

32:23

bit on the crazy, I should

32:25

say that this injunction which

32:28

was narrowed by the Fifth Circuit has been saved

32:30

by the Supreme Court while the justices are considering

32:32

this case. I think

32:34

that context is really important

32:36

because what

32:38

I'm gonna say next kind of cuts against that which

32:40

is that the legal issues are genuinely unsettled

32:42

here and I do think

32:45

that there are real First Amendment questions

32:47

about to what extent you want the

32:49

government to be able to kind of

32:51

tap a platform on the shoulder and

32:53

say like hey there's material here that

32:55

we're not super crazy about might you

32:57

consider taking this down. Like that is

33:00

a genuine issue and

33:03

the doctrine on this

33:05

is confusing. First Amendment doctrine

33:07

is always a mess. I think this is

33:10

particularly messy just because it hasn't been fleshed

33:13

out particularly well and

33:16

so I was kind of cheered to

33:18

see most of the justices really seeming

33:20

to you know attempt to address this

33:22

in good faith. Justice

33:25

Alito, big surprise, seemed to be the

33:27

only person who really bought what

33:29

Louisiana was selling here. I think

33:32

everyone else seemed both conscious of

33:34

the distortions in the record and aware

33:37

of the potential concerns of creating a

33:39

standard that's so strict that it would

33:41

make it impossible for the federal government

33:43

to say reach out to

33:45

Facebook and say you know like hey there's

33:48

terrorism came up a lot, you know there's terrorist content

33:50

or you know there's a foreign influence operation happening on

33:52

your platform you might want to take a look at

33:54

that and so on and so forth.

33:57

So I came away not having

33:59

a great sense of of what particularly the court

34:01

will rule, but with a pretty strong sense

34:03

that a majority of the justices seemed not

34:07

impressed with Louisiana's argument. That's

34:09

a different question than, you

34:11

know, ideally in a perfect

34:13

world, what kind of form

34:15

would a doctrine that sort

34:17

of holds

34:19

the government back from being overly censorious,

34:21

but still allows the flexibility that's needed,

34:23

like what that would actually look like.

34:25

I don't know. I think it's a

34:28

genuinely tough problem. We'll see how the

34:30

court comes out here, but I did

34:33

not come out of this tearing my hair, as

34:35

I sometimes do when I listen to oral arguments.

34:38

Are you saying this was no net choice argument,

34:40

Quinta? I mean, the thing is, in

34:43

net choice they were trying to. They

34:45

just... They were just confused

34:47

in a way that they couldn't see

34:49

even as good. Yeah, they were confused.

34:52

Here they were less confused, yeah. Ryan

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35:34

Yeah, just to give a specific example of the muddiness

35:37

of the record or the fact pattern, back

35:56

in September after Missouri v. Biden,

35:58

after the... the District Court ruled, Yul

36:01

Roth, who was the head of, I believe,

36:04

site integrity for Twitter during the 2020 election, felt

36:07

so compelled to set the record straight that he

36:09

wrote a post for the Knight First Amendment Institute

36:11

called Getting the Facts Straight, in which he didn't

36:14

weigh in on the legal issues at all, which

36:16

is, I think, understandable given his background, but he

36:18

wanted to set the record straight on

36:20

a few things, one of which being that he

36:22

pointed out that in the preliminary

36:24

injunction in Missouri v. Biden, the

36:27

injunction actually incorrectly asserted that

36:29

Twitter had censored discussions of the

36:31

so-called lab-league theory of COVID-19, in addition

36:33

to Facebook, when he claims

36:36

that Twitter did no such thing, it was

36:38

only Facebook on that side, which

36:40

I think also brings up important questions about job-ownings

36:43

effect on different social media platforms

36:46

being able to set

36:48

their own standards and act differently

36:50

from one another, consumers having

36:53

different choices in terms of platforms,

36:55

rather than platforms themselves being pressured

36:57

to act in unison. And

37:00

that was just one specific example

37:02

that seems pretty significant that I

37:04

wanted to point out. Yeah, let

37:07

me hop in and just say that I

37:09

basically agree with everything that Quinta said. I

37:14

do wanna emphasize the point Quinta made, that

37:16

there really are difficult issues here, and while

37:18

a lot of the facts

37:20

alleged appear to

37:22

not have happened, which is awkward, I mean,

37:24

that's bad lawyering. Yeah, you really don't want

37:26

a justice that's basically accusing you of lying

37:28

during oral arguments. It was genuinely

37:31

striking how Agun Yage

37:34

really seemed shocked

37:36

by the exchange. Yeah,

37:39

that's not so good. At the

37:41

same time, I really wanna emphasize, there were some bad

37:43

things that the government did. Shortly

37:45

after the Louisiana, the district court judgment came

37:47

out, I did a podcast with Jeff

37:50

Kossef and Derek Bambauer, where

37:52

we sort of went through, and I think

37:55

we were all pretty skeptical of

37:58

the extremely broad injunction, We did

38:00

recognize that there was some not great stuff the government did.

38:03

There was someone, I forget the exact

38:05

title, social media, something in the White

38:07

House who was basically sending profanity-laden screed

38:09

at social media companies. Yeah, that guy

38:11

was clearly not doing

38:14

his job particularly well. Let's

38:16

put it that way. Well, except the problem, of course,

38:18

is that he seemed to think that that was his

38:20

job. That was the whole issue. Then

38:22

there were some comments about Section

38:25

230, and maybe we have to revisit that.

38:29

That's an awfully nice Section 230 liability immunity

38:31

you have there. It'd be a shame if anything happened

38:33

to it. Again, I think Quint

38:35

is right, and I think a Supreme Court will rule. When

38:38

you look at it in the totality, those

38:40

isolated incidents, while bad and hopefully the Supreme

38:42

Court does a – the

38:44

Supreme Court opinion does a drive-by chastisement of

38:46

the government with respect to those. They don't

38:48

rise to the level of anything that would

38:51

justify the broad-based injunction. But

38:54

it is a legitimate problem. The

38:57

other thing that I would say is I

38:59

think it is tempting both

39:01

because it's analytically cleaner and because

39:04

right now the politics line up in the

39:07

following way that it's easier just to say,

39:09

look, we just have a really bright-line rule

39:11

that the government is allowed to

39:13

communicate with private parties as long as there

39:15

is not explicit coercion or

39:17

really heavy-handed implicit coercion. That's

39:20

probably going to be what the court rules because it's hard

39:22

to figure out what else to say. To

39:25

be clear, that's not actually the

39:28

standard in all domains of law,

39:30

and it's not also the standard

39:32

that progressives necessarily should want. Eugene

39:35

Volokh, who's a law professor at UCLA, wrote

39:38

a really interesting piece on the Volokh conspiracy

39:40

just pointing out that when it comes to,

39:42

for example, the Fourth Amendment and what we

39:44

think of state action under the Fourth Amendment

39:46

– obviously not related to this case, but

39:48

similar conceptual question – the courts often are

39:51

willing to find state action when the police

39:53

induce or even honestly just ask

39:55

a private entity to engage in

39:57

an action that were it done.

39:59

done by the police would potentially violate

40:01

the Fourth Amendment. Now again, that's

40:04

not to say that that should necessarily

40:06

be the standard here. There are different

40:08

considerations, but it is to point out

40:10

that the theory of the case by

40:13

the plaintiffs that when

40:15

the government asks social media companies

40:17

to take down speech, that's

40:20

concerning. That's not a crazy theory, right?

40:22

And I think what's unfortunate in this

40:24

case is that, you know, what started

40:27

off as a legitimate concern that should

40:29

have been really thought through and even

40:31

potentially litigated became this kind of right-wing

40:34

fever dream that by the time

40:36

it got to the Supreme Court was just like

40:38

so out over its skiv that,

40:40

you know, you have people like

40:42

Joseph Sommer correctly chastising the

40:44

advocates for not being honest. And again, like

40:47

that's bad. They should not do that. But

40:49

I really don't want to lose track of

40:51

the fact that, you

40:53

know, if the rule is if the

40:55

it's very easy to imagine the politics of this being

40:57

reversed and people on the center and the left being

40:59

extremely upset that

41:02

the government is going anywhere near social

41:04

media companies and asking them to

41:06

take content down. Yeah, I mean,

41:08

you're not wrong. And I think that that

41:10

is one of the difficult things. I pray

41:13

some good to direct. We're agreeing. We're

41:15

on the same page. I need a

41:17

certificate. You're not

41:19

wrong. I'm not wrong. I want that

41:22

on a pillow. Yeah,

41:24

mark the time and date. No,

41:28

I mean, I think it is one of

41:30

the weirdness is that we do have this

41:32

kind of genuinely unsettled doctrine. There are real

41:34

questions here, not only about like the

41:36

law, but also, you know, how do

41:38

we want to live in a society

41:40

that have kind of been warped

41:42

by this right

41:45

wing fever dream. And

41:47

I think it's

41:49

a good demonstration of how, you know, we're

41:52

talking about the the Fifth Circuit because this

41:54

came out of the Fifth Circuit. The Fifth

41:56

Circuit, of course, also recording this on Wednesday,

41:58

has had a real. banner

42:01

like 36 hours in

42:04

terms of whether or not it was allowing SB4,

42:06

this Texas Criminal Immigration

42:08

Enforcement Law, to go into effect where it was in

42:10

effect and then it was not in effect and then

42:12

it was in effect again and you know it's not

42:14

really a no way to run a railroad

42:17

and I do think that that sort of just

42:19

like loony stuff that comes out of the Fifth

42:21

Circuit in all

42:24

areas of law. We're focusing

42:26

on First Amendment here and you know the

42:29

net choice cases also involved

42:31

a loony Fifth Circuit decision.

42:34

It's just like it's not good for

42:36

the law, it's not good for how

42:38

we think about these issues. It

42:40

creates all kinds of weirdnesses and complications

42:43

that make it difficult to kind of

42:45

cut through to the actual problems at

42:48

issue. The one

42:50

thing that like slightly cheers me

42:52

about this is that it seems

42:54

like the Supreme Court is kind

42:56

of losing its patience with

42:59

this kind of behavior. The Fifth

43:01

Circuit is the new Ninth Circuit.

43:04

Yeah I mean kind of yeah. Like

43:06

on the other side yeah. Not what

43:08

I would have expected. Throwing out all

43:10

kinds of crazy stuff and the

43:13

Supreme Court including you know a lot

43:15

of very conservative justices are finding themselves

43:18

having to be the adults in the room and you

43:21

could tell a story where this ends up you

43:23

know that the circuit has a kind of road

43:25

to Damascus moment and and changes its approach. I

43:27

kind of doubt that frankly but

43:29

it is telling I

43:32

think how frustrated the justices were

43:34

except for Alito with

43:37

the arguments that that Louisiana

43:39

was making and that Louisiana was making

43:41

in part because the district judge and

43:43

the circuit allowed them to take that

43:46

kind of glide path without

43:48

really challenging them and pushing them on a

43:50

lot of the crazy assertions they were making.

43:53

Yeah I think this is actually a really good

43:55

example of of of Pyrrhic lower court

43:58

victories and you actually see those kind all over

44:00

the place. I mean, take a completely unrelated example

44:02

from just the opposite side of the political spectrum

44:04

because this isn't anything that can happen, right? You

44:07

know, one reason I think that, for example, Harvard

44:09

lost so badly in the affirmative action case before

44:11

the Supreme Court is because there was a perception

44:13

that the lower court in that case was doing

44:16

a lot of sort of covering for Harvard in

44:18

how it described the Harvard missions scheme, which was

44:20

great for Harvard in that moment. But then the

44:22

problem is you have this kind of record that

44:24

then goes up to the higher courts. And if

44:27

the higher courts think that like, it's really unconvincing,

44:29

then you're really off on the wrong foot. And so,

44:31

you know, this can happen unless can happen on the right.

44:34

And, you know, there may be a larger lesson here about

44:36

the need for

44:39

kind of more just judicial

44:41

ideological diversity on all the circuit courts

44:43

of appeals. You just kind of avoid

44:46

extreme rulings either way. I'm

44:48

curious about putting the legal questions aside

44:50

for a second and thinking about how

44:52

this could actually work in process or

44:54

sort of the policy angle. I think

44:56

Matt Perrault, friend of the pod, friend

44:58

of lawfare, put the challenge really well

45:01

when he said in another night First Amendment post that

45:03

he said, quote, the challenge is to

45:05

develop solutions that mitigate job-ownings most abusive

45:08

forms while preserving the benefits of company

45:10

government communication. Alan, I know

45:12

you've thought about this a little bit about the policy issues

45:14

here. So, you know, I'd love to throw it back to

45:16

you. Yeah. And again, I don't

45:18

I don't pretend to have an, you know, an

45:20

answer here. I mean, this really does trade off

45:23

very difficult considerations. So you're going to you're not

45:25

going to you're always going to piss off everyone.

45:27

But, you know, that's that's the space I like

45:29

to be in. That's that's my that's my comfort

45:31

zone. As you all know, I'm a big believer

45:33

that this is one of these areas in which

45:35

the cliche sunlight is the best disinfectant is actually

45:38

not just a cliche. It's an

45:40

important point and a meaningful one. I think

45:42

a lot of the concerns around job-owning is

45:44

that it happens in secret, right? It happens

45:46

because someone in the White House or someone

45:48

in the federal government calls somebody of theirs

45:51

in the social media companies, and

45:53

then something happens. And I

45:56

do think that what we need to see

45:58

more of is the government

46:00

just making its case publicly

46:03

as to what it thinks is false

46:06

or really harmful and

46:08

calling on if it wants to social media

46:11

companies to react accordingly. And

46:13

then the social media companies can do

46:15

so or they can not do so, right? And

46:18

then we'll be able to have that debate. And

46:21

I think that you could make

46:23

this a legal rule, right? I mean, you could make part

46:26

of the job owning test for

46:28

First Amendment purposes, whether this was done

46:30

covertly or overtly. But you can

46:32

just have it as a policy matter, right? Because I

46:35

think that the government's willing to say, look, we

46:37

think such and such is wrong and bad and

46:39

we're willing to make the case to the American

46:41

people, right? And we're not ordering anyone

46:44

to do it, we're not throwing anyone to do it,

46:46

but we just think that like, you shouldn't have such

46:48

and such content on your platform and then the companies

46:50

can respond or not. I think

46:52

that's a fair way and it

46:54

would avoid the perception of conspiracy,

46:56

right? Now again, look, you're

46:59

never gonna satisfy everyone, conspiracy theorists

47:01

are gonna conspiracy theorize. But

47:03

I'm not that interested in convincing the

47:07

lunatic fringe of either side, right?

47:09

I'm interested in giving

47:11

some comfort to the people in the kind

47:13

of broad middle, right? Who

47:15

are legitimately concerned with

47:18

job owning. But

47:20

at the same time, realize that

47:22

sometimes there's really bad false stuff

47:24

out there and the government might

47:26

have a comparative advantage in spotting

47:28

that. So, that is my, again,

47:30

I don't wanna call it a solution, but

47:33

I do think that that reform would over

47:35

the long term be

47:37

valuable and certainly would be better than

47:39

these like off record, who

47:41

the heck knows what kind of collaboration or

47:43

coordination is happening. You know,

47:46

I'm gonna say something else you can put

47:48

on a sampler, I wanna agree with you. Yeah.

47:53

And what I mean by that is that, I

47:56

don't know, like five years ago, I would have said,

47:58

yeah, someplace, let's just. some fact in, get

48:01

it out there, have it in the open.

48:03

I will say Matt and I recorded a

48:05

great podcast with Alex Abdo at night, which

48:07

I believe will be out on the same day that you're listening

48:09

to this podcast, your listener, and so you can go and take

48:12

a listen to that, where we

48:14

discuss the possibility of kind of, you

48:16

know, transparency procedures also for behind the

48:18

scenes communication. And my worry with

48:20

that kind of argument is just like, we have

48:25

seen how little

48:28

the facts matter to people who

48:30

are making these conspiratorial arguments. And

48:32

what I mean by that is

48:34

that, you know, you

48:37

have reams and reams and reams

48:39

of evidence about, you know, COVID-19

48:42

vaccines, the fact that the

48:45

2020 election wasn't stolen, and

48:47

it hasn't convinced anyone. It's

48:49

actually, there's kind of a counterintuitive way where

48:51

like, the more data you have,

48:54

the easier it becomes in some

48:56

sense, at a certain point, to point at

48:58

it and just kind of yell and wave

49:00

your hands around and say like, Oh my

49:03

God, there must be something, you know, hinky

49:05

going here, because, you know, here's my, you

49:07

know, it's always sunny red conspiracy.

49:10

Because I've created a ton of smoke, there must

49:12

be fire. Exactly. And so,

49:14

so I, I'm not saying that it wouldn't

49:16

help, like, I don't want to fall into the

49:18

trap of saying, this is a

49:21

big problem, and therefore, small

49:23

fixes are completely useless. But I do

49:25

think like it is a small fix,

49:28

if that makes sense. Well,

49:31

speaking of the US

49:33

government's efforts to understand what to

49:35

do with social media, Reuters

49:38

had a pretty wild

49:40

report that came out on

49:42

March 14, about a covert

49:45

influence operation, authorized

49:47

by the Trump administration against

49:49

China, out of, of course,

49:51

the CIA, which I'll just quote

49:53

here, the CIA created a

49:55

small team of operatives who use bogus

49:58

internet identities to spread negative narratives. about

50:00

Xi Jinping's government while leaking disparaging

50:02

intelligence to overseas news outlets. I

50:05

want to know what what cat turd is in

50:07

Chinese, right? Like I gotta assume those were the

50:13

I have a lot of questions about this. Among

50:16

them are like how effective is

50:18

it to have a social media

50:20

influence operation in a

50:22

country that famously has a great

50:25

firewall and like takes things down

50:27

very aggressively? Like you can't even

50:29

post pictures of Winnie the Pooh

50:32

on Weibo because it gets taken

50:34

down because there's a there was

50:37

a joke that Xi Jinping looked like Winnie the

50:39

Pooh. Oh he does he does look a little

50:41

I think it was a picture of him next

50:43

to Obama. Obama was sicker. I

50:46

guess so. I guess so. He does look a little really

50:48

holy. So look I mean this

50:50

this thing like it's easy to make

50:52

fun of. I am

50:54

more than happy to make fun of it.

50:57

But I am curious

50:59

before we we go into the mockery for

51:02

for what both of you make of this.

51:04

I mean Tyler I'm interested in your take

51:06

in part because you've recently been spending a

51:08

lot of time thinking about U.S. foreign policy

51:11

and sort of behind

51:13

the scenes operations and in different

51:15

contexts. How did you read this

51:17

story? Yeah I guess I

51:20

didn't find it that shocking that it that

51:22

it was happening. I don't want to appear

51:24

to have a tinfoil hat on or anything

51:26

but I know any anytime that a report

51:29

comes out that the CIA does

51:31

X I think any any

51:35

even putting LSD in the drinking water.

51:37

I know right. I think any like

51:39

cursory understanding of the history of the

51:41

CIA shouldn't surprise anyone that an influence

51:43

operation like this is happening. I was surprised

51:45

at how sort of low

51:47

budget not to go back into the mockery

51:49

already but how like low budget and unimpressive

51:53

it was. This image of just

51:55

a few spooks

51:57

in a room trying to. So

52:00

to leak out information probably

52:02

in very heavy handed or not

52:05

very nuanced Mandarin, I

52:07

don't know exactly what it looked like, but I guess I wasn't

52:09

surprised when this story

52:12

came out. I have been reading Alexander

52:16

Ward's great book, The Internationalists,

52:18

about the first two years of the Biden

52:20

administration's foreign policymaking. So I was curious about

52:23

whether these types of activities have

52:25

continued into the Biden administration.

52:27

A lot of questions that have come

52:29

up for me in reading the book

52:31

so far about the continuity versus breaking

52:33

with Trump's foreign policy, because the tagline

52:35

of the book is restoring American foreign

52:37

policy essentially after Trump. But there are

52:39

quite a few continuities, especially when it

52:41

comes to Biden's stance on China,

52:44

wanting to appear just as tough, if not tougher,

52:46

on China than Trump. So those

52:48

are the questions that came up for me, not

52:51

so much why this was

52:53

surprising that it happened at all. Yeah,

52:55

I mean, I should say, Alan, before I let

52:58

you jump in. So as you say, Talia,

53:00

it's one of the things in the story that

53:02

took place in 2019, it does say

53:05

it's not clear whether it has continued. I

53:07

will note that in

53:10

2022, the Washington Post had

53:13

a big story about a

53:15

report by the organization's Grafica

53:17

and the Stanford Internet Observatory

53:20

that identified what seemed pretty

53:22

clearly to be an attempted

53:24

Pentagon covered influence operation in

53:28

the Middle East, attempting to move

53:30

people toward the United States, which

53:32

was also astonishingly clumsy. And

53:35

there is likewise no evidence that it was

53:37

particularly effective one way or the other. That

53:40

caused a bit of an uproar. And after the fact,

53:42

the Pentagon said that I believe that they were shutting

53:44

it down and that they were auditing

53:47

how it conducts these

53:49

kinds of operations. So

53:52

at least as of recently, we have a

53:54

strong indication that the Biden

53:56

administration is not looking so kindly on

53:59

this kind of thing. at least within

54:01

the Pentagon. And I would say also, I mean,

54:04

it's always fun to make fun of the CIA, but

54:07

these kinds of covert

54:09

influence efforts are actually not something

54:11

that, other than this 2022

54:14

Pentagon dust up, not something that there's

54:16

a lot of evidence that the US

54:18

has been engaging in recently, which

54:21

I would argue is a good thing

54:23

because A, there's no evidence that they work, and

54:25

B, it's just like torturing your own credibility

54:28

when you complain about influence operations from Russia.

54:31

But Alan, what do you think? No, I think

54:33

that's all right. I mean, because

54:36

I'm kind of a perverse

54:39

devil's advocate, I want to justify this

54:41

somehow. We have to disagree about

54:43

something. Yeah, it's

54:45

hard to, right? And this doesn't seem very well thought out, doesn't

54:47

seem very well done. Again, it's not clear

54:49

that this would work. As you point out, Quinta, right, you're

54:52

throwing rocks while standing in a very

54:55

glass house, right? Given just

54:57

how vulnerable our open

55:00

society is to manipulation relative

55:02

to others, we should be trying to

55:04

set a norm here, right? Rather than,

55:07

again, like you said, torture our credibility for

55:09

uncertain gain. The thing that I

55:11

do want to emphasize though, is I want

55:14

to send me a defense of the CIA here. China

55:16

is an incredibly hard target, right? And this is

55:18

something that really don't appreciate. It

55:21

is almost impossible to do human intelligence gathering

55:23

in China because of how closed of a

55:25

society it is because of how much surveillance

55:27

there is. And because all the CIA's

55:29

assets were rolled up in recent years. All the CIA's

55:31

assets were rolled up. The language

55:34

barrier is not insignificant,

55:37

frankly. We spent two

55:39

decades teaching everyone in the

55:42

intelligence community, Pashto, was

55:45

reasonable. That wasn't a bad thing to do. But

55:47

as someone who spent two years every

55:50

morning at 9am in college trying to

55:52

learn Chinese and did not learn Chinese,

55:54

it is a very hard language to learn, right?

55:57

So trying to train up people to do this is

55:59

very difficult. You know, it's a

56:01

very ethically homogeneous society. So it's hard

56:03

to just take like a random, you

56:05

know Non-Chinese person teach them Chinese

56:08

and then send them to China, right? So

56:10

then you are trying to recruit

56:13

Chinese Americans right but that creates its

56:15

own very complicated set of Issues,

56:18

right and that community may not you

56:20

know, also prefer that for a

56:22

variety of issues Friday of reasons

56:25

So, you know, I want to

56:27

say in defense of the CIA that this is

56:29

a very hard problem we

56:31

need to refocus on intelligence gathering

56:33

in China and You

56:37

know if if this was a all right

56:40

We got to make China priority for for

56:42

intelligence gathering and for covert operations. Let's throw

56:44

stuff on the wall Let's see what let's

56:46

see what sticks again. I'm not trying to

56:48

defend that approach But it is somewhat understandable

56:51

and I just don't want to lose

56:53

sight of the fact that China which

56:55

is I think again without question the

56:57

great strategic competitor and adversary

57:01

for the next, you know foreseeable future as

57:03

much as I worry about the Cold War framing

57:05

that sometimes people say I don't think

57:08

it's entirely wrong frankly and So

57:10

I hope the CIA continues to

57:12

try to to do intelligence

57:14

collection in in China I don't have any suggestions

57:16

for how for how they do it, but it

57:19

is an important thing to do Yeah,

57:21

I mean I guess what I would say

57:23

is like there's an argument that conducting these

57:26

kinds of offensive Propaganda operations

57:28

undermines your ability to actually

57:30

collect useful information Because

57:33

it makes it easier for

57:35

the Chinese government to you

57:37

know paint people as American Stooges and

57:39

so distressed and and So

57:42

on and so forth, right? And

57:44

there's also an argument that you know And

57:47

entirely your point earlier like there's just so

57:50

we haven't seen the stuff that the CIA

57:52

produced I will

57:54

say the stuff that has been to gone

57:56

products of the CIA meme Lord. Yeah want

58:00

to. Oh yeah, the Pentagon

58:02

produced for the Middle East

58:04

was like comically bad. I

58:06

will also one

58:09

of these complicated PowerPoints like me,

58:11

me, Lauren, you know, there's an

58:13

incredible article. This is my favorite

58:16

a use of FOIA ever from

58:18

Vice in 2021 where it's so in

58:20

2020 cyber command posted a

58:24

meme on Twitter

58:27

making fun of Russian

58:30

intelligence operations as kind of like

58:32

a election integrity thing. And

58:35

it has like a guy wearing

58:37

a bear costume. This is

58:39

October. So Halloween. No, no, no,

58:41

it's clearly a bear. Quinta. Okay.

58:43

He's a bear. He's a straight

58:45

up bear. He's like holding a

58:48

pumpkin and he's tripped and the

58:50

candy falling out of the pumpkin

58:52

has like labels of Russian

58:55

hacking efforts. And

58:58

according to the FOIA records,

59:01

it took Cybercom 22 days

59:03

to develop

59:06

workshop and produce this image.

59:08

And they were

59:12

all very bad. At a cost of what

59:14

to the taxpayer? This

59:16

reminds me of one of my favorite

59:18

Brooklyn nine nine episodes where where Captain

59:21

Holt gets sent to PR and

59:23

has to spend months

59:25

helping name the met pigeon

59:27

mascot for the NYPD. It's

59:32

like a real real vibe there. There

59:34

are things that the government is

59:36

good at. Intelligence collection

59:39

is one of them. Making

59:41

memes. Not so much.

59:44

Like stick to your strengths, guys. If

59:48

there was ever an argument for privatization, right?

59:50

It's like, it's like we should give. So no,

59:52

here's my proposal. Elon Musk should

59:54

be responsible for getting payloads

59:56

into orbit and for creating

59:59

dank memes. No, his posts are

1:00:01

so bad. His posts are terrible. I

1:00:06

have to make a seize the memes of

1:00:08

production joke in here somewhere. That's

1:00:11

good. All

1:00:15

right. Well, clearly before we completely devolve into silliness, I

1:00:18

think this is a good place to end it. But

1:00:21

this would not be rational security if we

1:00:24

did not end with some object lessons. So

1:00:26

Quinta, let's start with you. What's your object lesson?

1:00:29

I am sharing true

1:00:32

crime courtroom drama with

1:00:35

you all from the Detroit News

1:00:37

because it's always good to support local news. This

1:00:40

is the tale of something that happened in federal

1:00:42

court in D.C. the other day where a

1:00:45

woman, her name is Stephanie Lambert. She

1:00:48

is a Michigan lawyer. She is

1:00:51

representing one Patrick

1:00:53

Byrne, former CEO of Overstock

1:00:55

and election conspiracy truther, against

1:00:58

Dominion. Wait, Overstock? Really? I

1:01:00

love that site. He resigned.

1:01:04

First I lose the MyPillow guy, then

1:01:06

Overstock. No, he left the company and

1:01:08

I think there's like some kind of

1:01:10

fight with the board because he's- Okay.

1:01:12

So you're saying that I can still

1:01:14

buy discount furniture. Okay. So

1:01:17

he is being sued by Dominion for

1:01:19

allegedly telling lies about the company over

1:01:21

the 2020 election. This

1:01:24

woman, Stephanie Lambert, was in

1:01:26

federal court in D.C. as part of

1:01:28

that litigation. And at the

1:01:31

end of the hearing, the courtroom was

1:01:33

cleared. The U.S. Marshals came in

1:01:35

and she was arrested on

1:01:37

a bench warrant from a

1:01:40

Michigan court because

1:01:43

she had been charged and

1:01:45

was evading the authorities

1:01:47

in a separate case against

1:01:49

her in Michigan state court

1:01:51

for allegedly tampering with Michigan

1:01:54

voting machines, also related to

1:01:56

the 2020 election. Little

1:01:59

rock star. incredible. I love it.

1:02:01

She has since appeared in DC Superior

1:02:04

Court and said that she was

1:02:06

not trying to evade arrest. I believe she

1:02:09

said it was a miscommunication. Yes,

1:02:14

she said you're arrested. And she said,

1:02:16

yes, I'd love to go to the

1:02:18

Bahamas. I love

1:02:20

the idea that you have a there's like a

1:02:22

bench warrant out for your arrest and you show

1:02:25

up in federal court. The

1:02:27

whole thing is incredible. Everything about this

1:02:29

story is great. It's a great demonstration

1:02:31

of how this sort of election conspiracy theory

1:02:33

world is a closed universe

1:02:35

because Lambert is also involved

1:02:38

in the Michigan Kraken lawsuit

1:02:40

and makes some appearances in

1:02:42

the effort to discipline the

1:02:44

lawyers coming out of that

1:02:46

litigation. So keep

1:02:48

your eye on this one, folks. It's a great

1:02:50

story. It's just not a very high skilled bunch.

1:02:52

Like this, this is not the best and the

1:02:54

brightest of the legal profession. Quinta,

1:02:56

I think I said this to you before, but

1:02:59

I am once again calling for a complete and total

1:03:01

shutdown of the legal profession until we can figure out

1:03:03

what the hell is going on. Honestly,

1:03:06

we could use it. You're

1:03:09

good. You're good. You're spicy today, Tyler. I'm

1:03:11

loving this. All

1:03:14

right. Well, spicy Tyler, three chili pepper, Tyler.

1:03:16

What's your what's your object lesson? Well,

1:03:19

as I am in D.C., I

1:03:21

was going to offer the beloved

1:03:25

stumpy cherry blossom tree as

1:03:27

my object lesson. So I will still drop

1:03:29

that in the notes. But mere

1:03:31

minutes before we started recording, Quinta

1:03:34

created a work of art

1:03:36

graphic to demonstrate

1:03:39

the political advantage over

1:03:41

time of delaying

1:03:44

Trump's January 6th trial. So Quinta, if I

1:03:47

could ask you just to paint a

1:03:50

mental picture for the listener

1:03:52

now. Yes. So

1:03:54

this is I am

1:03:56

an artist. Thank you. We will put this on Twitter.

1:03:58

Don't worry. So it is a graph. So

1:04:00

on the x-axis is time,

1:04:03

and there is a little mark for the election.

1:04:05

On the y-axis is political advantage

1:04:08

to Trump. And then there's a

1:04:10

line that is marked benefit of delaying

1:04:12

trial, which goes up and to the

1:04:14

right steadily, except at a point just

1:04:16

before the election where it suddenly

1:04:18

dips way, way, way down. Like a

1:04:21

negative asymptote to infinity. Exactly. Yeah,

1:04:23

it's kind of a black hole situation. And then

1:04:25

it dips up and continues onward. And

1:04:28

the black hole is labeled a black hole of

1:04:31

awful. You could also call it the black hole

1:04:33

of political disadvantage. The argument being that, of course,

1:04:36

it is super great for Trump to delay his

1:04:38

trial, but at a certain point, you will delay

1:04:40

it until the end of the summer,

1:04:42

but not enough. So it goes to trial right in

1:04:44

the thick of campaign season, and then maybe you

1:04:47

get convicted on October 31st. What

1:04:50

is that? That would be a great October surprise. Yep.

1:04:53

All right. For my object lesson,

1:04:56

my wife and I are really enjoying a Netflix

1:04:59

limited series called The Gentleman.

1:05:02

It's kind of a remake of a Guy Ritchie

1:05:04

film from a few years ago. And Guy Ritchie

1:05:06

also made this. The premise

1:05:08

is basically a British

1:05:11

aristocrat ends up

1:05:13

getting mixed up with drug dealers

1:05:15

who are using his estate to

1:05:18

grow a bunch of marijuana and

1:05:20

Guy Ritchie hijinks ensue. I will say,

1:05:23

I find

1:05:25

Guy Ritchie movies reasonably entertaining. I don't

1:05:27

love them. And so

1:05:30

I didn't have super high hopes for this. But for some

1:05:32

reason, if you take a Guy Ritchie movie and you

1:05:34

stretch it out to eight hours, it's

1:05:37

actually great because everything goes

1:05:39

slower. Like it's not

1:05:41

as compressed as your Guy Ritchie movie

1:05:43

is. And for some reason, I

1:05:46

think Guy Ritchie is actually much

1:05:48

better maybe in longer form content.

1:05:51

More cool fight scenes? Yeah.

1:05:53

I mean, I think it's about

1:05:55

the thing is it's the same number of cool

1:05:57

fight scenes that you have in a Guy Ritchie

1:05:59

movie. except it's stretched out. And so like

1:06:02

he allows the kind of story to breathe

1:06:04

a little bit. And he's actually pretty funny.

1:06:06

He's a stylish director. You

1:06:09

know, the cinematography has done pretty well. So I

1:06:11

gotta say I'm really enjoying it. You

1:06:14

know, I'm only at I'm I'm I haven't finished

1:06:16

it. So you never know what happens in the

1:06:18

last two episodes. So if it all goes terribly

1:06:20

wrong, my apologies. But yeah, that's my

1:06:22

object lesson. The Gentleman on Netflix. Thank you Guy

1:06:24

Ritchie. Well,

1:06:26

that brings us to the end of

1:06:28

this week's episode. Rational security is of

1:06:30

course a production of Lawfare. So be

1:06:32

sure to visit lawfaremedia.org for our show

1:06:34

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did I do that? Did I do that right? Did I do the X

1:06:49

the way that Scott does? I don't know if it had quite

1:06:51

the his je ne sais quoi. Thank

1:06:55

you. Well, be sure to follow us

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1:06:59

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Also sign up to become a material supporter

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Osbend of Goat Rodeo and our music as

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always was performed by Sophia Yan. We are

1:07:14

once again edited by the wonderful Jen Patya.

1:07:17

On behalf of my co-host Quinta and our

1:07:19

special guests Tyler McBryant and Anna Bauer, I

1:07:21

am Alan Rosenstein and we will talk to

1:07:23

you next week. Until then, goodbye. Or

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