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0:31

I feel like it's only appropriate that

0:33

since I have now triumphantly returned to

0:35

RATSEC, we should begin with the discussion of

0:37

Minnesota weather, which is so

0:39

warm right now. It's in the

0:42

50s. I gotta say,

0:44

climate change is bad. I want to

0:46

be on the record. I'm on the

0:49

record as against climate change, but

0:52

it's not terrible in Minnesota. On net,

0:54

it's terrible, but it

0:56

has certain very localized benefits.

0:59

It makes me sad and anxious. I hate

1:02

it. Every winter, I feel just

1:04

this sense of incredible dread that

1:06

is in dissonance

1:09

with all of the sunshine and the

1:12

flowers that show up earlier and earlier

1:14

each year. Give me snow, man. Well,

1:16

it's because you live in DC, which I feel

1:18

like if I were in DC and I had

1:21

warm winters, I'd be horrified because then I'd think,

1:23

oh God, this summer is going to suck even

1:25

more. That's the problem. I feel like you know,

1:27

it's because I like cold. I like snow.

1:29

I'm a Northeasterner. You

1:32

were in the wrong city, my dear. I'm sorry. DC,

1:37

having grown up here, I tell you, it's not a snowy

1:39

city. It is a place of moderate

1:41

climate. I think what you lose in places

1:43

of moderate climate is not a place of

1:45

moderate. It is not a place of moderate.

1:47

Well, except for the humidity. If you take

1:49

the humidity out, it's

1:52

a moderate climb, extreme

1:54

humidity. That's fine. It

1:56

feels like a very gerrymander definition of moderate. Yes,

1:58

which seems very appropriate. for our nation's

2:00

capital. I would

2:03

just say, you know, the thing you lose is

2:05

the ecstatic highs and lows of extreme weather, which

2:07

I think Minnesota lives in, where my sense is

2:09

like the first day that breaks 45 degrees,

2:13

everybody is in like short shorts and

2:15

out on, you know, the green sunning.

2:17

And like, it's kind of like an Age of Aquarius

2:19

music video sort of moment where there's just singing and

2:22

dancing and people with flowery headbands everywhere. And

2:24

then winter comes and it's just like everybody

2:26

has to descend deep into the bowels of

2:28

the earth for four months. And so you

2:30

have that kind of like cathartic cycle that

2:33

it's a little more exciting. It makes life like a little

2:35

more notable, I will say. I

2:37

will admit there is no joy

2:39

like the joy of a

2:41

Minnesotan in early May. Yeah,

2:45

I believe it. I'm curious. It's

2:47

just everybody's just drunk and crazy everywhere. Not

2:49

even conditional on, you know, Lutheran

2:52

introversion. It's just like straight up people

2:54

go nuts. But

2:56

if we're being honest, it's a nice little flavor too.

2:58

It kind of brings it out a little bit. I

3:00

feel like the Lutheran guilt. It's

3:02

like if, you know, you took Lake

3:04

Woebegone, like it's Lake Woebegone kind of

3:06

had a Girls Gone Wild episode. It's

3:08

kind of what we're talking about. Hello,

3:18

everyone, and welcome back to Rational Security.

3:20

I am one of your regular co-hosts,

3:23

Scott R. Anderson, back here in the

3:25

virtual studio for the first time in

3:27

a long time with both of my

3:29

other regular co-hosts, Alan Rosenstein. Hello, it's

3:32

so nice to be back. And

3:34

Quintetraecic. Hello. Alan,

3:37

the prodigal son has returned. Your

3:39

young has returned to Quintetize Crosby,

3:41

Stills and Nash. Quinte,

3:43

you can pick whichever one you want to be. That's fine.

3:46

I think I'm the one with the mustache. I'll just take that

3:48

one now. We're thrilled to have you back,

3:50

Alan. Thank you. I

3:52

am. I'm glad to be back. It is great.

3:54

Great to have you. Are you feeling refreshed? Are

3:57

you feeling well

3:59

rested from your life? long vacation in

4:01

a tropical localia, I assume. Yeah, exactly.

4:03

Yeah. Well, since the reason for my

4:05

departure was the birth of child number

4:08

two, I am delighted

4:10

and extremely tired. But I

4:13

look forward to bringing the manic, I guess

4:15

I'm not a new father. I'm a new,

4:17

I don't know, I don't know, what do

4:19

you call it if it's when

4:21

you're second kid? It's not new parent, it's

4:24

renewed. Since I may renewed. A renewed parent.

4:26

A renewed parent of an infant. I look

4:28

forward to bringing crazy manic energy.

4:30

Like at the library, we just didn't get around to

4:32

reading that book the first time around. You're like, this

4:34

is one more go. Let's just do one more renewal.

4:36

See if this time I'll actually read it. Yeah,

4:39

I will say what is that joke from, I

4:42

think it's important to be Ernest Oscar

4:44

Wilde, right? To lose one parent is

4:46

a tragedy, two is a... Carelessness. Carelessness.

4:49

I feel like, you know, you have one kid and

4:51

it's like you get the freebie for the bad judgment,

4:53

but two, like you knew it, you were getting yourself

4:55

into. How what

4:57

is the marginal, the marginal difficulty level? What is

5:00

it from the one to the two? Because it's

5:02

a source of much contention. Yeah,

5:04

I've been thinking about this a lot. So

5:06

on the one hand, I think having a

5:09

second child, at least for me

5:11

has made me reflect on how over worried

5:14

and how like, way more stuff

5:16

I did that was necessary for first kid,

5:18

like in like, what was I so stressed

5:20

about? They're incredibly simple. Like they just need

5:22

to be fed and, and no cuddle. It's

5:24

just like a, it's just like a squishy

5:26

Tamagotchi. Yeah, it's extremely not complicated. But

5:28

of course, now you have the toddler you also

5:31

have to deal with. And like the poor toddler

5:33

didn't sign up for any of this, like the

5:35

poor toddler just makes up one day and is

5:38

just no longer the most important thing in his

5:40

parents' lives, right? And so I would say

5:42

it's, it's definitely not twice as

5:44

hard. It's like 1.4

5:46

times as hard, let's say. But the problem of course, is that

5:48

I didn't have 0.4 of a child's worth

5:51

of extra bandwidth. For

5:54

sanity. For sanity. So it's

5:57

an experience. I mean, I recommend it. It's very cute.

6:00

I forgot. God babies are cute. They

6:03

really are. They really are. So cute. I mean, they

6:05

have to be given how useless they are. I think

6:08

it's part of the biological formula. It's

6:10

100%. Yeah, that actually absolutely is part

6:12

of it. 100%. The only reason

6:14

we can eat them is 100%. But God, they're cute. And

6:20

I think the older one enjoys having the

6:22

younger one and they've got some very cute

6:24

pictures of the older one holding

6:26

the younger one. I mean, there's a lot of parents trying

6:28

to keep children from falling off and stuff. Well,

6:32

I am thrilled to have the band back together

6:34

as I'm sure the listeners are as well, although

6:36

we have done well, we hope, in your absence.

6:39

But I've got to

6:41

say, I've been listening to Rational Security quite

6:43

religiously. It's a really good show. It's

6:46

not bad. Now that you've finally listened. Yeah, you're like, oh, yeah. It's

6:48

really good, right? Like, I've just been listening as a listener

6:50

for the last two months. And I mean, I almost feel

6:52

bad about coming in and wrecking the great thing you've got. You

6:55

know, you have with Molly and Natalie

6:57

and Tyler and all the other folks, but

6:59

it's good. Well, you know, you record

7:01

five or six hours of audio and then Gen just

7:03

works your magic. And somehow you get about 60 minutes

7:05

of quality content out of it. Yeah, that's about right.

7:08

And that's how we do it. Well, listener, we're thrilled

7:10

to have you back with all three of us and be all here

7:12

with you. But a quick

7:14

programming note, enjoy it while it lasts, because

7:17

in a few short weeks, I am taking my own

7:19

extended absence for the very same reason that Alan did,

7:22

and that we are also having a second child come

7:24

early to mid-March. So

7:26

if you like the three of our voices, savor

7:28

it for the next few weeks, because

7:30

I will be gone for a while. And then I will

7:33

be back. And then presumably Quinta will quit there.

7:35

We'll see how things go. We're going to

7:37

go hang out with my dog. There

7:40

you go. Exactly. But we will

7:42

still hopefully be back together, imminently afterwards.

7:44

But for the next few weeks, we have all three of

7:46

us, along with some other members of

7:48

the RadTech Friends and Family. So we are excited to

7:51

be back with you for these weeks. For what we

7:53

are calling in honor of our, you know, law fair

7:55

babies that were like six and seven, I think, in

7:57

the few years that I've been here. It's kind of

7:59

insane. second season edition, the creepiest

8:01

possible way to describe it. Oh

8:04

my, do too, but I love it. I

8:06

love it. I would just like to say

8:09

that that my suggestion for the title was

8:11

don't worry, Elon, Lawfarer is doing its part

8:14

edition and I, I'm gonna go with that

8:16

one. I was worried that would be that

8:18

people thought we were fucking, we're talking about

8:20

fucking up Twitter, which we're also doing. That's

8:23

fine. But the second season is upon

8:25

us here at Lawfarer. And of course, let us, let us

8:27

enjoy it with some very

8:29

weighty and seasonal

8:31

of the season decisions in national screening news,

8:33

because we've had a big week in national

8:35

screening news, lots of big items happening, a

8:38

few big updates and a couple stories we have been

8:40

tracking that we think are worth talking about and stepping

8:42

back in and visiting on. So let us

8:44

dig into it. Our first topic for this

8:46

week is losing

8:48

the immunity challenge. Everybody watch this

8:50

show still on Survivor. I think it's still on.

8:52

I think it's still on like 30 seasons. That's

8:54

immunity. That's a survivor thing. Anyway, I'm

8:56

a naked and afraid guy. Oh, that

8:59

is a better choice. So I agree. Earlier

9:01

this week, the DC circuit, that sounded much more lecherous than

9:03

I meant to do when I said, Oh yeah, that's a

9:05

much better show. My voice just did a weird thing. I

9:07

don't know what that was about. You not in the fecundity.

9:10

Yes, exactly. It's, it's, it's not healthy. Earlier

9:12

this week, the DC circuit rejected former president

9:14

Trump's attempt to appeal the denial of his

9:16

claims of presidential immunity to criminal charges arising

9:19

from January 6th. That is a mouthful. That

9:22

issue is now prime for the Supreme court to take up,

9:24

but will it? And what will it decide topic

9:26

to ordeal or no deal Israel's

9:29

military offensive in Gaza continues. The United States

9:31

is trying to facilitate a short term hostage

9:33

deal and a longer term bargain that would

9:36

incorporate Israel and Saudi Arabia into a security

9:38

pact while addressing the Palestinian concerns. How realistic

9:40

are these proposals and how might they impact

9:42

the dynamics of the Gaza conflict on

9:45

topic three, the shakedown breakdown congressional

9:48

Republicans who once insisted on tying Ukraine assistance

9:50

to a border deal have now turned against

9:52

any effort to hash out a border deal.

9:55

Even as house Republicans have also failed to

9:57

impeach Homeland Security secretary Alejandro, more Nijorkas or.

10:00

to pass their own stand-alone assistance bill

10:02

for Israel. Where does this all leave

10:04

aid for Ukraine and what ramifications will

10:06

this congressional dysfunction have moving forward? For

10:08

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

10:11

So on Tuesday, the DC Circuit

10:14

issued a long awaited opinion in

10:16

United States versus Trump, the criminal

10:18

indictment and trial of the former

10:20

president for election interference and

10:23

a variety of other sins emanating

10:26

from his attempt to overturn the 2020 election.

10:29

The issue is whether Trump was or

10:32

is absolutely immune from

10:34

criminal prosecution for acts taken

10:36

in his official capacity while

10:38

president. And in a very interesting, closely

10:41

argued, per curiam opinion,

10:43

per curiam meaning that it was

10:46

formally unsigned, which is essentially that

10:48

all three judges on

10:51

the panel decided to take sort of joint

10:53

responsibility. We can talk about what the signaling

10:55

of that is. And in

10:57

this per curiam opinion, the court

11:00

held quite conclusively that Trump does not

11:03

enjoy this criminal immunity.

11:06

So there's lots to talk about here. I

11:08

wanna first actually turn to Quinta and just

11:10

ask her to give

11:12

us an overview of the opinion. Quinta, you and

11:15

Scott and some other folks at law

11:17

fair wrote a great overview explainer the same

11:19

day that the opinion came out. So hopefully you can give

11:21

us the kind of high level of what you

11:23

all covered in that. I'm gonna

11:25

skip over the super sexy jurisdictional question,

11:27

which Scott can talk about. You're no

11:30

fun. Can't wait. I don't care about

11:32

anything like that. Continuing this weirdly sensual

11:34

episode after I come into security. I

11:38

don't care. I don't care about

11:40

the jurisdictional question. Yeah, boy,

11:42

oh boy. The opinion is

11:44

actually pretty straightforward. So

11:47

Trump essentially made three main arguments

11:49

and all just kind of go through them

11:51

each in turn. So the first is that

11:54

separation of powers, concerns, bar reports

11:56

from reviewing official presidential actions. And

11:59

for this, Trump relied on Marbury

12:01

versus Madison. You know it's a good

12:03

sign when that's what you're basing your

12:05

argument on. And the

12:07

court was not impressed by this. I

12:09

think we can say fairly that this was sort

12:11

of the pet issue of

12:14

Judge Karen LeCrafft Henderson during oral

12:16

argument. She really went in on

12:18

this and the section of the

12:20

opinion sort of reflects the considerations

12:22

that she was weighing

12:25

during arguments. The very

12:27

short version without going into the details

12:29

on Marbury is essentially that there's

12:32

not a separation of powers issue here

12:35

because Trump has allegedly broken

12:37

a law passed by Congress

12:40

and breached his constitutional obligations.

12:43

And under Marbury, the judiciary has

12:45

the ability to review

12:48

those actions. The next

12:50

argument is that there are

12:52

sort of functional policy considerations that

12:55

are important for keeping

12:57

the executive branch running that rely

12:59

on criminal immunity for former

13:01

presidents. Basically the argument being, you

13:03

know, if you don't allow this immunity, then

13:05

everyone will be scared of being prosecuted after

13:08

they leave office and they'll never do anything.

13:10

Again, the court was not particularly

13:13

impressed, reasoning both that

13:15

first off, past presidents have

13:17

been laboring under the assumption that they didn't

13:19

have immunity and it doesn't seem to have

13:21

caused them a huge amount of problems. And

13:24

second off, that the interests and the opposing

13:26

direction, the interests of the public and of

13:28

the executive branch in prosecuting this case are

13:31

sufficiently weighty that they outweigh any interest

13:34

on the part of former presidents voiced here

13:36

by Trump insofar as the

13:38

public has an interest in the

13:41

enforcement of the criminal laws as the executive

13:43

branch. And also that the conduct at issue

13:45

here on Trump's behalf is

13:48

something that was explicitly aimed at

13:51

overturning the votes of

13:53

the public and of obviating

13:55

what the court positions as sort of

13:58

the last biggest check on the... executive

14:00

branch, which is losing an election.

14:03

Then that brings us to the third argument, which

14:05

is kind of this technical argument about the impeachment

14:07

judgment clause. So the, again, the very short version

14:09

is that the clause says that if

14:12

you are convicted in an impeachment

14:14

proceeding, you can still be tried

14:16

criminally afterwards. Trump

14:18

tries to draw a negative inference of that

14:21

and says, aha, but I was acquitted in my

14:23

impeachment proceeding over January

14:26

6th. Therefore I cannot now be

14:28

prosecuted. And the

14:30

court basically says, and this is

14:32

following some reasoning set out during oral argument, I'm

14:35

in questioning by Judge Florence Pan. Nice

14:37

try. This is sort of

14:39

too cute by half. It's not in

14:41

line with the text

14:44

of the clause with the relevant

14:46

constitutional history. And also

14:48

it sort of ends

14:50

up arguing against Trump because there's

14:52

an admission here that, okay, well,

14:55

if you do allow prosecution,

14:58

if you have been convicted in

15:00

an impeachment proceeding, then that

15:02

means that there isn't the

15:05

kind of absolute all encompassing

15:07

immunity that Trump is arguing

15:09

for. That's again, the very, very

15:11

short version. I think what was notable to

15:13

me here is that, as you said, we did get

15:15

a procurium opinion. The court is really speaking with one

15:17

voice. And they did move quickly.

15:20

I was among those who

15:22

criticized them for dragging their feet. And I

15:24

actually will hold to that criticism. I do

15:26

think that they could have moved more quickly.

15:28

And given that the clock is ticking toward

15:30

November, the loss of an additional month is

15:33

potentially a problem. But this is a, it's a

15:35

very strong opinion. They clearly did a lot of

15:37

work to sort of speak with one voice and

15:41

try to put something together that could potentially allow

15:43

the Supreme Court to decline

15:45

to grant cert and just kind of leave the matter

15:47

here. So that's the kind

15:50

of opinion itself. Scott, I

15:52

think just as interesting as the opinion is the judgment

15:54

part, right? They kind of order to the lower court

15:56

and to the parties as to what to do. And

15:58

it's usually not something we can't do. all that

16:00

much about with these opinions, but this is I think

16:02

an exception. So what's in this judgment and

16:05

can you do the calendar math gaming

16:07

out for us, if you will? Sure,

16:10

it's a really interesting aspect here. It's often

16:13

actually a really important part of these particularly

16:15

intermediate court of appeals determinations is the judgment

16:17

that often gets overlooked because it's not published

16:20

as part of the opinion and judges for whatever

16:22

reason that's never been clear to me don't always

16:24

describe their judgments in their opinions. So the published

16:26

parts you read as a law student or as

16:28

a lawyer don't include that always. What

16:30

they did here is really novel and interesting as

16:32

far as I can tell. They basically said, okay,

16:34

we are going to stay the mandate. That means

16:37

that we're not going to allow the district court

16:39

to continue with the criminal trial that this was

16:41

an appeal from through February 12th. So basically a

16:43

little less than a week. That

16:45

hold of the mandate will continue if former

16:47

President Trump applies to the Supreme Court for

16:49

a stay pending a petition for

16:52

search for RRI. Meaning if the president decides to

16:54

appeal this to the Supreme Court and then asks

16:56

the Supreme Court for a stay, we're going to

16:58

continue to hold the mandate until the Supreme Court

17:01

decides on the stay. That's not that unusual other

17:03

than the fact that really encourages Trump to move

17:05

quickly on that initial request. But a request for

17:07

a stay again is a much more constrained

17:10

legal request than an actual petition for search. So

17:12

it's something that I think asking him to do

17:14

that in five days isn't going to

17:16

be perceived as unreasonable by most people, including

17:19

the Supreme Court, importantly. What's really interesting is

17:21

what they did with the rest of the

17:23

DC Circuit. This is just a three judge

17:25

panel. There's an option where you can usually

17:28

with from an appellate court appeal of sorts,

17:30

actually potentially petition for rehearing of a particular

17:32

decision by the whole court, or at least

17:34

all the active judges on a court. That's

17:37

called a rehearing en banc, which is kind

17:39

of an intermediate optional appellate stage that plaintiffs

17:41

or parties can pursue instead of

17:43

going to the Supreme Court or before going to the Supreme

17:45

Court. In this case, they

17:48

essentially said, hey, if you petition for a

17:50

rehearing en banc or petition for a hearing

17:52

even with this panel, which is another option,

17:54

two things that Trump may have been

17:56

tempted to do if his main incentive is

17:59

to delay. as we have been suspecting

18:01

is the case, then the

18:04

mandate will not actually be continued to be stayed. It

18:06

will go back to the trial court. So if you

18:08

roll the dice on that former President Trump, the

18:11

court essentially says, this panel says, then you're going

18:13

to have to deal with the fact the trial

18:15

proceeding is going to continue unless and until both

18:17

those requests are granted. This is

18:19

a kind of wild thing to do, I think.

18:21

Maybe there's an aspect of DC circuit practice I

18:23

missed, but I follow these things with

18:25

enough closest, I'd be a little surprised. Essentially,

18:28

they're saying, if it's

18:30

a high risk maneuver to try and seek rehearing

18:32

in the DC circuit, I think

18:34

what this means is that this decision

18:37

actually might, at a minimum, it means they're very confident

18:39

that the DC circuit as a whole is not going

18:41

to take this up on rehearing on Bach. But

18:43

I think it might be more than that. I kind of

18:45

suggest it means that they may have floated this opinion by

18:48

the rest of the DC circuit before they issued it, because

18:50

this would be a kind of disrespectful thing to do if

18:52

they didn't have a strong sense of the rest of the

18:54

court was already on board with doing this, because essentially, they're

18:56

saying, we are going to punish a

18:58

party for trying to appeal to the rest of you

19:00

for your alternative judgment. And that's just a little bit

19:03

of an uncouth thing to do if you didn't get

19:05

sign off. We know the DC circuit and other

19:07

appellate courts do do these sorts of informal consultations at

19:09

times, like there have been a handful of cases where

19:11

the DC circuit has occasionally gotten a matter out of

19:13

panel and said, nope, we're going to go ahead and

19:15

just take this on Bach, because we know there are

19:18

enough other judges that care about this that are going

19:20

to want to have a voice on it, that we're

19:22

not going to bother with the panel phase. And

19:25

so something similar, but in reverse might have happened here,

19:27

we don't 100% know. But I think that

19:29

actually might help explain the delay. And in my

19:31

mind, frankly, if it's a month delay, but it

19:33

got you in a position where

19:36

you can credibly cut off the possibility of a

19:38

rehearing over hearing on bonk, that is very

19:40

much a net time savings. Because the period

19:42

of petition for those things itself, I believe

19:44

is 45 days, 45 or 60, I can't

19:46

remember. So it's substantial, that on

19:48

top of the time to coordinate a

19:50

per curiam opinion between three judges that

19:52

are ideologically diverse, really bipartisan judge Karen

19:55

Henderson, who's on this panel, traditionally very

19:57

conservative judge, very protective of presidential prerogative

19:59

and a very wordy writer who really

20:01

likes to write her own opinions. So getting her

20:03

on board, I suspect with a heavy lift, even

20:05

though she clearly agreed with the other judges from

20:07

oral argument from a month ago that we're well

20:10

aware of. So long story short, I'm

20:12

seeing the product now. I get why it took a month,

20:14

and I still think it might be a pretty substantial net

20:16

savings. Where this leads us time frame wise,

20:18

I think, depends on what the Supreme Court does. Supreme

20:21

Court can consider exactly the stay

20:25

in the first place. They're gonna get that request

20:27

in five days, almost certainly. That's what the panel

20:29

decision has laid out. And

20:31

then they can move on it relatively

20:33

quickly or not. It is

20:35

stayed pending the resolution of that. The

20:38

mandate's held as soon as President Trump applies for

20:40

it. So that's probably gonna be the first thing

20:42

they do. That requires a five justices to agree

20:46

we're gonna issue a stay. And in theory, they're

20:48

supposed to weigh the likelihood of success on the

20:50

merits and the likelihood of receiving cert or

20:52

giving cert into that formula. Although I think

20:55

in practice, justices tend to be

20:57

a little loosey goosey with when they stay things

20:59

in many cases, as do

21:01

judges at the lower level. Regardless,

21:03

then at some point, former President Trump will file

21:05

a formal petition for cert. That's the thing that

21:07

actually lays out the arguments. Here's why we should

21:10

give us cert and take up this issue. That

21:12

only requires four justices to agree to grant cert.

21:14

But for that, you're gonna have, I think, two

21:16

months, 30, 60 days to petition for,

21:18

I have to check the time on that. I feel like I

21:20

think it's 60 days. Do you guys know how to stop your

21:23

head? So I'm not sure,

21:25

but I know that the court, I mean,

21:27

they can expedite if they want to, right?

21:29

And we've seen that before. Oh,

21:32

yeah, yeah. They could move things a lot. Like,

21:34

I think that there's a lot of calculations being

21:36

flung around about, oh, you know, this is gonna

21:38

take a million years because he has 60 days

21:41

or 90 days or something. But they can

21:43

speed things up if they want to. And

21:45

they've certainly been conscious of

21:48

the timing in the past.

21:50

Yeah, it's possible. I mean, I don't think we really

21:52

know. We know that traditionally under the

21:55

conventional rules, former President Trump has a certain

21:57

period of time, I believe, at 60 days

21:59

to petition. for cert. So

22:01

if there you can run down the clock on

22:03

that barring some pressure from one direction or another

22:05

that we haven't seen come into play yet, then

22:07

the Supreme Court is going to have to decide

22:09

on it. Then we'll have a period of decision

22:12

where the Supreme Court will actually come back. But

22:14

the Supreme Court may decide sooner rather than

22:16

later. And if they decline to stay the

22:18

mandate, meaning if they decline or reject the

22:21

motion that they will almost certainly receive in

22:23

five days, then this goes back to the

22:25

trial court. Now, it's possible

22:27

that you'll have five justices for that

22:30

you will not be able to get five justices

22:32

to stay the mandate, but you'll still get four

22:34

justices to grant cert, meaning you'll get a Supreme

22:36

Court decision where they can address some of these

22:38

other issues. But five justices didn't think it was

22:40

likely to change the outcome, and that

22:42

former President Trump is likely to work us

22:44

out on appeal. And so that means the trial

22:46

court can then proceed. So we

22:49

might know soon, potentially as soon

22:51

as six days that the Supreme Court moves extremely

22:53

quickly, that this trial can then restart.

22:55

And then you have to take kind of the time

22:57

that's already been lost, during which

22:59

trial proceedings were held up by

23:02

this appeal onto the probably the

23:04

existing original March 4 trial date.

23:07

So then, you know, that pushes out another 30 days

23:09

plus the time or whatever the deliberation time over

23:11

this motion. I think if you do all

23:14

the math, basically, there's different estimates all

23:16

over the place. And frankly, they're all kind of

23:18

phantom numbers. But realistically, I think the earliest we

23:20

would get a decision would be sometime over the

23:22

summer, meaning a final trial decision,

23:24

if everything goes this way. It could be towards the

23:27

earlier side of the summer. But I think that's about

23:29

right. In the trial, we could start in May, I

23:31

think would probably be the earliest realistically, then

23:33

it could go further than that. I mean, it

23:35

could go three court remand certain issues back to

23:38

the DC circuit, which is possible that

23:40

it could drag out even further. So it all

23:42

depends on really how the Supreme Court decides to

23:44

structure its approach to this issue. And

23:47

I would just say on the timing point, Scott, I

23:49

mean, that's insane timing. I'm not saying

23:51

that's bad timing. But I mean, Trump

23:54

has effectively now pushed this his

23:56

trial to the worst possible time

23:58

for him. And again, I'm Yeah,

24:00

right. Not just worst possible time for him,

24:02

who cares, but really the worst possible time

24:04

for Republican voters because they may really be

24:06

in a situation where they will have just

24:09

nominated this guy to be their presidential nominee.

24:13

And then he gets convicted. Right.

24:16

And then they're extremely

24:18

screwed. And again, right. I mean, I'm

24:20

not going to cry too many tears over that. But

24:22

there's a little bit of a be careful what you

24:24

wish for aspect here. Getting

24:27

back to the opinion, though, for a second, you know,

24:29

so we've talked about kind of the timing in terms

24:31

of cert, but we should talk about whether the Supreme

24:33

Court should in fact take up

24:36

cert. And here I want to reference a very

24:38

interesting piece that Jack Goldsmith wrote

24:40

for law fair arguing that although

24:42

he thinks the opinion came to

24:44

the right conclusion, he thinks that

24:47

for a number of reasons, the Supreme Court

24:49

should take the – should actually

24:51

hear this case, right, in part because this is just

24:53

a very important issue of federal law. And

24:56

that is one of the standard bases on which the Supreme

24:58

Court is supposed to take cert.

25:00

And beyond the issue of just simply being

25:02

an important federal issue, Jack argues that because

25:05

it touches on kind of obliquely some

25:07

other related legal issues in particular,

25:10

the question of as a matter of statute

25:12

or interpretation, when does a generally applicable criminal

25:14

statute actually apply to the president, that for

25:16

those reasons, the Supreme Court should take up

25:18

the opinion and hopefully kind of deal with

25:21

those kind of collateral issues maybe as well,

25:23

because – have

25:25

an opportunity to do so. I'm just kind

25:28

of curious what you, Scott, and Quinta

25:30

think about, you know, both of the likelihood of

25:32

the Supreme Court taking this issue up and also

25:34

whether they should. And the last thing

25:36

I'll just add to this is, you know,

25:38

I'm old enough to remember when the Supreme

25:40

Court declined to take up this issue

25:42

in the first instance despite Special Counsel and Wizard – I'm

25:44

so glad I can refer to him as Wizard again. I

25:46

miss that. Special

25:49

Counsel, Wizard, Jack Smith, asked

25:51

the court to do that just skipping over the

25:53

D.C. Circuit. They declined. And I

25:56

wonder if you think there are sort of tea leaves to

25:58

be read from that initial debate. decision. Yeah,

26:01

I so I do think that the fact

26:03

that they denied cert before judgment

26:05

certainly adds weight

26:08

to the argument that they might deny

26:10

cert here. I don't know how much weight it

26:12

adds, but if

26:15

I had to bet, I would bet they deny cert.

26:17

I think that maybe they

26:19

wouldn't if they weren't also hearing this

26:21

14th amendment case. But to be

26:23

completely honest, I just think John Roberts doesn't want to deal

26:25

with this guy. Like, why would you

26:28

take up another case involving

26:30

Donald Trump? But if

26:33

it's just John Roberts and the three liberals

26:35

who don't want to take it up, I

26:37

mean, that leaves five. That's enough. Right. But

26:39

if you if you look at the way

26:41

that the DC Circuit opinion is written, I

26:43

think it's very clearly written to encourage

26:46

the court to deny cert if

26:48

indeed it wants to do that.

26:50

There are citations in it all

26:53

throughout to opinions written by Kavanaugh

26:55

by Thomas. There's a

26:57

hilarious paragraph where

26:59

the court essentially goes

27:01

through different cases

27:04

in which appeals courts have

27:06

ruled on efforts to secure

27:08

judicial criminal immunity. And

27:11

what you see if you look at that,

27:13

and thanks to someone who pointed this out to me

27:15

on social media, is in italics,

27:18

the little words cert denied cert

27:20

denied cert denied cert denied. So

27:22

there's certainly an indication that

27:25

this is kind of an escape route if the

27:27

court wants to take it. I do think that

27:29

from the position of kind of thinking about the

27:31

legitimacy of the court, which I do think that

27:33

others, other justices, in addition

27:35

to Roberts are also increasingly concerned about,

27:37

frankly, in the aftermath of Dobbs and

27:39

in the wake of all of this

27:42

reporting about money in the court, that

27:44

there's a real incentive to just say, like, we're

27:46

not going to touch this one, especially

27:49

given that they're now stuck with the

27:51

hot potato in the 14th Amendment case.

27:54

I mean, Jack's article

27:57

is an interesting

27:59

reflection. on sort of the equities

28:01

that OLC has, Office

28:03

of Legal Counsel within DOJ has in this opinion.

28:05

And so far as what he's arguing

28:08

is essentially that the, as I understand

28:10

it, the DC circuit ruling is gonna

28:12

cause a lot of problems for internal

28:14

OLC interpretations about how to interpret generally

28:17

applicable criminal statutes when it comes to

28:19

the president. But given

28:21

that OLC is clearly on

28:23

board with what Smith is doing

28:25

here, and Ben and I

28:27

have written a little bit about why we

28:29

think that, I find it hard

28:32

to imagine that that in and of itself

28:34

is going to be enough to kind of

28:36

push the court to take this

28:39

issue on, particularly because I don't think,

28:41

I mean, Smith doesn't want them to

28:43

grant cert. He's not gonna make

28:45

that argument. Yeah, I generally agree with that.

28:47

I wanna go back to the idea of what

28:50

the court has done here to lay out why

28:52

it is setting itself up to grant cert. I

28:54

think there's a lot more beyond just signaling like,

28:57

hey, here's this option. When you're

28:59

a judge, you can kind of approach decisions in

29:01

at least two different ways strategically, right? One

29:03

is you can try and lay out what you

29:05

think the legal standard is. That

29:08

can be good because it lets you say, here's

29:10

how I think these cases, this category of cases

29:12

like this should be resolved and

29:14

lay down a clear rule saying, here's

29:17

exactly how the different principles and equities to

29:19

be involved. And this is the thing that frankly,

29:21

judges get in the business to do, right? Like

29:23

you wanna have your name called like, the

29:26

something principle, the Kavanaugh principle, the Kavanaugh standard

29:28

or whatever the judge's name is because, or

29:30

like write a seminal case that defines that

29:33

standard cause like that's the ultimate work of

29:35

a judge. And when you're an appellate court

29:37

judge, that's your hope is that like you

29:39

write an opinion that gets taken up by

29:41

the Supreme Court and made, this is the

29:43

standard, you get credit for it, like Lauren

29:45

Silverman has for many years and

29:48

also under a number of other

29:50

examples like that. That's very much not

29:52

what this court did at all. Instead

29:55

what they did basically, they said, we're rejecting

29:57

the proposition that former president Trump

29:59

put forward. that presidents are

30:01

categorically immune for official acts. And

30:04

then they say, and we accept the possibility that

30:07

presidents may be immune for certain other types of

30:09

criminal conduct, but it makes no sense when you're

30:11

talking about things related to the 2020 election. Between

30:15

those two things is a vast

30:17

terrain on which the Supreme Court

30:19

justices are free to project whatever standard they

30:21

like. And by

30:23

denying cert, they are allowing an opinion

30:25

to stand that is not inconsistent with

30:28

any of those standards, meaning

30:30

that they are actually not letting really

30:32

problematic case law lie because the case

30:34

law avoids drawing any sort of

30:37

standard or a line that justices

30:39

might find objectionable or take issue with

30:41

and force them in their mind to

30:44

draw an alternative line. So

30:46

it becomes an opinion that frankly is like

30:48

a lot more satisfying, less satisfying for judges,

30:50

frankly less satisfying for people who are going

30:52

to have to drill similar circumstances in the

30:54

future that aren't closely bound to the facts

30:56

of this case. But I think it

30:58

becomes a lot easier for a ideologically

31:00

conflicted and frankly, like hard to read

31:02

on this issue set set of justice

31:05

on the Supreme Court to say, nah,

31:07

let's let this one lie. Because

31:09

while we might like have our own ideas about

31:12

how we would deal with this scenario, what they

31:14

say is not fundamentally wrong or objectionable, even if

31:16

we feel like it's an incomplete picture. And

31:18

for the other reasons that Quinta noted, the legitimacy

31:21

reasons, the fact that they have a loaded docket

31:23

with these cases already, they're also waiting to hear

31:25

for a likely appeal and blasting game, the civil

31:28

immunity sort of companion to this case, I

31:30

think on the 15th, if I recall correctly,

31:32

that's that's too. So like

31:34

they have a lot of issues involving Trump before

31:36

it. And also fundamentally, like Trump's arguments here are

31:39

weak. No one thinks they are persuasive.

31:41

They are very bold, exaggerated constitutional claims.

31:43

And while there may be some inkling in there

31:45

where people say, well, there should be immunity here

31:47

and there. I don't think many people

31:49

find it persuasive in this particular context. I don't think

31:52

that many justices are likely to either. And so with

31:54

all those factors combined, it

31:56

might be one that they're happy to let the DC circuit have

31:58

just as they did when they first considered. the

32:00

issue in December. So that's where my

32:02

money is on this. Although I would

32:04

not go so far as to

32:06

say it's a sure thing. It's an unpredictable set of

32:09

variables with an unpredictable set of people. But if I

32:11

had to put money on it, that's where I put

32:13

my money. Speaking

32:15

of things that Donald Trump could make worse of

32:17

that. That's good. That's

32:19

good. So

32:22

we've been hearing news about

32:24

ongoing negotiations between Israel and

32:27

Hamas about a possible cessation

32:29

and hostilities and exchange of

32:31

hostages. This is mediated by

32:33

Egypt and Qatar, who else?

32:37

And recently, Secretary of

32:39

State Tony Blinken has been getting in on

32:41

the action as well. It's

32:43

also worth noting that I mean, this is coming at

32:45

a pretty rough time for the

32:48

Israeli government. Politically, there's some

32:50

reporting that the New York Times had

32:52

out about how according to

32:55

the government, a fifth of the

32:57

hostages that remain in Gaza are likely

33:01

dead or certainly dead. There's

33:04

a pretty astonishing statistic there that

33:06

only one hostage has been successfully

33:08

rescued by an Israeli rescue operation

33:10

rather than through an exchange. And

33:13

there's been increasing unrest, I

33:15

think it's fair to say, among Israelis

33:18

and within the Israeli government within

33:20

the war cabinet on the

33:23

government's failure to secure the release

33:25

of hostages. Scott,

33:28

I turn, of course, to you. What

33:31

do you make of these negotiations? And

33:33

what is on the table here? It seems

33:35

to be changing pretty quickly. So keep in

33:37

mind, listener, we're recording this on Wednesday morning.

33:40

But what are the different proposals on offer?

33:43

Sure. I mean, what we have right now

33:45

is kind of the counter proposal by Hamas.

33:47

I don't think we have the full contours

33:49

of all the different deals. But Hamas has

33:51

kind of come back through interlock stories with

33:53

primarily the Qatari government, like Egypt has been

33:55

involved as well. And said,

33:57

essentially, look, we want to complete withdrawal of Israeli troops.

34:00

We want to cease fire for four months, 135 days. We

34:04

want to see reconstruction of Gaza in a

34:06

particular window. They are essentially

34:09

extending the negotiations beyond just

34:12

the parameters of the conflict

34:14

to the broader Palestinian question.

34:17

And if you buy into one set of

34:19

logic about why Hamas did what it did

34:21

on October 7th and pursuing such a horrendous

34:23

massacre, this feeds into that

34:25

theory. The idea was that, look,

34:28

the leverage that Palestinians have or that

34:30

we feel like we have as a

34:32

group concerned with Palestinian issues is

34:35

violence. And by committing violence,

34:37

that's the only and threatening it credibly. Like,

34:39

that's how we're going to get leverage in

34:41

this particular action or this particular negotiations. And

34:45

we now have that leverage and we're going to

34:47

use it to try and advance a variety of

34:49

goals across different platforms. I think

34:51

that might be a little generous to Hamas.

34:54

So because this is just their counteroffer, we will see

34:56

where it goes. You

34:58

know, it's far from clear for me to

35:00

me that Hamas comes out of this conflict

35:03

in a better position than it went into

35:05

it when it was essentially governing Gaza and

35:07

has been in a relatively stable status quo.

35:10

And that is just no longer the case now. Part

35:13

of the deal also that Gaza is urging for is a

35:15

return to kind of a 2002 status quo. It's

35:18

a return to a period where

35:20

you saw a motion towards Palestinian autonomy,

35:23

movement towards Palestinian elections that really haven't

35:25

happened in many, many years now. The

35:27

PA has been in power based

35:29

off elections that happened in 2006, 2007,

35:32

almost entirely. You

35:35

know, there's been some little actions between now and

35:37

then, but it's really not a democratic government at

35:39

this point if it ever was, despite

35:41

having some ties to early elections. And

35:43

I'm suggesting that we want to go

35:46

back to a period where there

35:48

is this trajectory. And importantly, there was still

35:50

a role for Hamas in the Palestinian political

35:52

scene. It was not there

35:54

was not a broader international effort to kind

35:57

of force it out of the Palestinian politics

35:59

because of its is ultraviolet views

36:01

towards Israel and Israeli statehood. That's

36:04

all gonna be too big an ask. These

36:06

terms are not gonna get bought into. And

36:09

now we're gonna see where the counteroffer is,

36:11

which I guess is, I'm guessing it's gonna

36:13

look a lot narrower from the Israelis if

36:15

we get a firm counteroffer and

36:18

exactly what the leverage is here. And the fact

36:20

that you have only a limited number

36:22

of hostages who are still living, which is a really tragic event,

36:25

limits Hamas's leverage. Traditionally,

36:27

hostages have been a real source of leverage, but

36:29

the Israeli government hasn't treated them that way this

36:31

time in a way that I'm wondering whether we're

36:33

gonna see a public reckoning about at some point.

36:35

We have to bear in mind, like a lot

36:37

of these Israeli hostages who have died were

36:40

probably killed by Israeli military operations. We

36:43

know Israeli military operations have had a high rate of

36:45

civilian casualty. They have been

36:47

criticized, but no one disputes, whether it's right

36:49

or wrong, no one disputes that it's happening, that

36:51

they're using large ordinance musicians and taking a

36:53

lot of actions that are not terribly precise. There

36:56

are collapsing tunnel complexes, they're blowing up buildings,

36:58

and all these things are places where hostages

37:01

are probably being held. So

37:03

I don't know how the Israeli public's gonna react to

37:05

that when you start to see the details of that.

37:07

We've seen one high profile incident where a number of

37:09

hostages were killed by Israeli troops after waving a white

37:11

flag. That frankly should

37:13

be a really troubling alarm

37:15

bell about Israeli military practices. But

37:18

I think it's one incident is easier to

37:20

write off and say, well, this was a set

37:22

of soldiers that exercise bad judgment in the field.

37:25

But I am curious what the after action reports

37:27

are gonna be as they find out exactly why

37:29

more and more of these hostages were killed. And

37:32

I suspect it's gonna be a really difficult issue

37:34

for the Israeli politic to wrestle

37:36

with, is the fact that like these military,

37:39

their own military campaign probably killed a lot

37:41

of these hostages that was kind

37:43

of the purpose of the military campaign in a lot of

37:45

ways, and that have traditionally at least been a major

37:48

focus of Israeli national attention. Hostages have always

37:50

been a major priority for them. And that

37:52

appears to have really been traded away at

37:54

this point by the Netanyahu

37:56

government by the wartime

37:59

Coalition. that's kind of.. De facto heading up

38:01

the military operation. Melding I

38:03

would just add to that is is emerging dislike,

38:05

pointed use, measured. It's not just the Netanyahu government

38:07

race Netanyahu government and the workout bonus when the

38:09

work haven't is very different from the Netanyahu government

38:12

in that the war temblors meant to be much

38:14

more bipartisan I think that's what. So so that's

38:16

what are striking. right? That

38:18

there's there's a lot of suspicion and I

38:20

think correct, that Netanyahu was trying to stall

38:22

for time because the moment the war ends,

38:24

he has to resign. and most he resigns,

38:26

he gets indicted. Or be indicted. Or I

38:28

I've lost. I've lost the plot on that

38:30

particular, a side of Israeli politics. And so

38:32

you know who was just Netanyahu, you could.

38:35

You could sort of make that kind of

38:37

cynical calculation there. But it's not just that.the

38:39

I mean, and I do think that this.

38:42

Reflects. A potential

38:44

shift right in in Israeli attitudes towards

38:46

towards hostages and and not a ship

38:48

that's gonna be uncontroversial. I'm not saying

38:50

that all of Israeli society has gone

38:52

has has swung from the sort of

38:54

i think pretty extreme end of like

38:56

you know we will turn the country

38:58

upside down if there is one. The

39:00

hostage right which honestly does seem to

39:02

be a position for many, many years

39:04

all the way to well what's your

39:06

hostage we we sort of have to

39:08

write you off because we just have

39:10

negotiate with these folks. but I just

39:12

I just think. It's. Notable that this is is

39:14

as much if not more a war cabinet decision they

39:16

think than it is even and a decision from the

39:19

yeah. I. Want to ask about

39:21

that? actually because I know there's been. Discontent.

39:24

Within that they were cabinets. I think

39:26

that that lead voice have seen on

39:28

this is that got a i've been

39:30

caught but there's been a lot of

39:33

frustration and sense that you know perhaps

39:35

Netanyahu is stalling is that it is

39:37

this putting his hold on the government

39:39

in any kind of danger or is

39:42

he really gonna be able. To kind of

39:44

ride this out. it's a real

39:46

close out exactly a closer follower of israeli

39:48

politics than i am and i suspect

39:50

even for people really close followed very closely

39:52

it's a big open question mean netanyahu is

39:55

a incredibly savvy guy who's willing to engage

39:57

in a lot of brinksmanship ah and make

39:59

a of political decisions other people

40:01

wouldn't be willing to, to stay in power.

40:03

You know, you can see his political evolution,

40:06

and he has been siding with people further, further

40:08

to the right in groups that he criticized just

40:11

five or 10 years earlier as being radical and

40:13

uncooperative for now in his governing coalition. And

40:16

who knows where he goes on this? It really

40:18

reflects that kind of fundamental problem here,

40:20

which is that Netanyahu's

40:23

whole government, his whole premise, has been built on the

40:25

idea that we can ignore

40:27

the Palestinian question, we can resist it,

40:29

we can assert our preferences by force.

40:32

That was true before the Gaza

40:34

conflict. You know, Netanyahu has overseen

40:36

the not subtle drift

40:38

away from the Oslo

40:41

process and the idea of a Palestinian state that

40:43

the Israeli government has been on for the last

40:45

20 years, really 15 years, certainly. And

40:47

that is, you know, been

40:49

an electoral winner, for lack of

40:51

a better way to put it, like a close one, not an

40:53

overwhelming one. I think a lot of Israelis, and

40:56

we saw a really articulate, I think,

40:58

interesting Foreign Affairs article written by Alice

41:00

Ben, who's the editor in chief of

41:02

Haratz. I think a really insightful

41:04

guy I've had the opportunity to chat with once or twice,

41:07

and a great voice on this, like laying this

41:09

out in some detail, like they're very articulate people

41:12

who think there are real problems with the ways

41:14

really approaching this conflict. But I think Netanyahu sees

41:16

political advantage in it. And I think what we're

41:18

beginning to see is Netanyahu is trying to run

41:20

to the right of the war cabinet. He

41:22

is and members of his coalition are

41:24

openly doing things that the exact things

41:26

that are getting Israel in trouble before

41:29

the International Court of Justice about having

41:31

meetings where cabinet members are going to

41:33

meetings about discussing about resettling the Gaza

41:35

Strip with Israeli settlers that were taken

41:37

out in during the withdrawal by Ariel

41:39

Sharon. You know, they're

41:41

openly talking about the benefits of forcing

41:43

Palestinians out of Gaza

41:45

Strip, resettling them on an island in the

41:48

Mediterranean or in the Sinai Peninsula, right? They're

41:50

courting these ideas that are well

41:53

outside of probably what the war cabinet is considering. I don't

41:55

think Benny Gantz is going to cosign on those things, but

41:58

they are, have political advantage. And

42:00

as long as those things still have political salience and

42:02

he still sees advantage in it, any

42:05

sort of deal that moves away for this is going to be

42:07

really hard to see the Israelis

42:09

buying into. Maybe that's not a

42:11

problem for the hostage agreement. Like some hostage agreement could

42:13

still come out of this. We saw one just a

42:16

few months ago that saw a lot of hostages return

42:18

in a real ceasefire. That was meaningful. I suspect we'll

42:20

see something similar to that, especially because Israeli military operations

42:22

are like kind of reaching the

42:25

point of marginal return that is more

42:27

limited. But it's

42:29

a big deal for the broader peace

42:31

deal. We know the Biden administration is

42:33

trying to still work out some sort

42:35

of Saudi-Israeli normalization deal that now incorporates

42:37

this very tricky Palestinian question. Frankly,

42:39

it sounds a lot like the deal they were

42:41

working on before the Gaza crisis, before October 7th,

42:44

that they are just now trying to turn into a solution for

42:46

Gaza on October 7th in a way that I'm not sure makes

42:48

a lot of sense or makes it

42:51

politically feasible. But the key point there is that

42:53

you really need the Israeli political base to

42:55

shift how they think about these issues. And

42:57

I don't think that's clearly happening,

42:59

at least Netanyahu doesn't seem to, because he's still

43:01

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44:18

There's also been reporting about negotiations

44:20

between the US and Arab

44:23

states, in particular Saudi Arabia, some

44:26

kind of agreement that might allow

44:28

the magic words in

44:31

the financial time. The creation of

44:33

a pathway for the establishment of a Palestinian state.

44:36

Scott, is this just complete fantasy

44:39

that seems a bit far fetched

44:41

to me, but maybe I'm just thinking small. It's

44:44

a fair question. And this has been a new

44:47

version of the plan that I mentioned earlier

44:49

about the Israeli-Saudi deal that was in the

44:52

works before October 7th. Before October 7th, remember,

44:54

there's been months of chatter about the idea

44:56

of Israel and Saudi Arabia entering into some

44:58

sort of joint collective security arrangement guaranteed by

45:01

the United States. Probably the United States would

45:03

be actually, it'd be more like a separate

45:05

arrangements with each country, but as

45:07

an incentive for them to normalize relations.

45:09

It was going to be the Abraham

45:12

Accords plus, plus, plus, like the diplomatic

45:14

accomplishment that does with Saudi Arabia,

45:16

the much more important state that the Abraham Accords

45:18

did with a number of other smaller states in

45:20

the Gulf and in the region. And

45:22

now that has been kind of incorporated

45:24

into the Gaza dispute because now they're

45:27

saying, well, Saudi Arabia can help fund reconstruction

45:30

of Gaza. It's true they can, and they

45:32

probably will at some point, although they will

45:34

certainly have political concessions on that. And

45:36

they have, and the idea is essentially we're going to

45:39

do that same deal with the security architecture, but

45:41

we're going to incorporate it now, a commitment from

45:43

Israel and backed by the United

45:45

States, backed by European powers to a

45:48

real path to statehood by Palestinians, beginning

45:50

with actual recognition of a Palestinian state,

45:52

albeit one that does not have the

45:55

ability to defend itself. It will not have a military. It's

45:57

still that Oslo formula

45:59

where it's... autonomously governed but doesn't have its

46:01

own defense capabilities. And that you

46:03

would take that recognition that would

46:05

bring with it various kind of international rights and

46:08

duties, it would be a big step towards the

46:11

Palestinians having their cause of nationalism acknowledged

46:13

by the international community, although a lot

46:16

of the international community already acknowledges that and recognize them

46:18

as a state, it's worth noting. But

46:20

the United States took that step, lots

46:22

of European governments would follow, almost certainly would be

46:24

a tipping towards there being recognition by

46:26

a Palestinian state by the vast majority of countries in

46:28

the world. What that

46:30

means in the long run though is at this

46:32

point, the Saudis have said none of this can

46:34

happen until we have a ceasefire on the ground

46:36

in Gaza and an enduring ceasefire, essentially an end

46:38

of military operations. I don't know if that's going

46:40

to go so far as like an end of

46:42

all operations against Hamas, but you can't have what's

46:44

happening in Gaza now that has been happening for

46:46

the last few months of this widespread occupation. And

46:49

that gets back to this domestic

46:51

Israeli political question, like to be

46:54

able to make this happen, you

46:56

have to think that the Israeli

46:58

body politic wants normalization

47:00

with Saudi Arabia enough that

47:03

they're willing to compromise

47:05

on the Palestinian status question, which again,

47:07

we've seen kind of the political views

47:10

of at least the leadership in the

47:12

Israeli government backed by repeated electoral victories

47:14

shifts hard away from. It's

47:17

up top of my fat and it accepts a

47:19

ceasefire in Gaza, whereas right now it seems like

47:21

a lot of Israelis actually still think

47:23

the Gaza military operation is appropriate ongoing. Again,

47:26

I think that

47:28

is one view that may well change because

47:30

as the operation goes on and it's not

47:32

clear what it's accomplishing, that will get difficult

47:34

to sort of justify, particularly if you start

47:36

getting stories about more and more hostages being

47:38

killed by Israeli military operations. But nonetheless, right

47:40

now it's not there yet. And

47:42

so you're really making a hard bet on both

47:44

Saudi Arabia and Israel switching

47:46

their kind of existing political views on this. I think

47:48

the Economist and their summary of it quoted a, I

47:51

think it was a quote for senior administration official. It basically

47:53

gave a 50-50 chance of both. So it's

47:55

a one in four chance of this actually playing out. And

47:58

so it just strikes me as a little bit of a Hail Mary. pass. I

48:00

think everybody says we need strategic vision and this is

48:02

the strategic vision. I'm not even sure it's the wrong

48:04

one because I don't know what else you can do

48:06

with this in the medium to long term. But

48:09

I'm not super, I think it would

48:11

be naive to think of this as a super optimistic or

48:14

likely path to a clear resolution of these issues

48:17

without a lot of just commitment by the United States

48:19

to go and make hard decisions and do things on

48:21

this issue set, particularly around the Palestinian question, that Israel

48:23

isn't going to like. I know this seems unlikely to

48:25

like in the near term. And that's

48:27

not clear that the political is there yet. We

48:30

saw this executive order about targeting violence in the

48:32

West Bank by settlers, maybe that's that is a

48:34

step in that direction. But I

48:37

don't think that alone will be enough. So

48:39

it's just, it's a formula that strikes

48:41

me as a very optimistic one as a little bit

48:44

of a, perhaps

48:46

a pipe dream. Not not to say that

48:48

again, it's a bad strategic goal to work

48:50

towards. But it's not something

48:52

that seems likely enough in the near term to actually answer

48:54

the immediate problems on the ground. And that's why I think

48:56

we're seeing a lot of these negotiations focus on the ceasefire,

48:59

even as this other broader deal still hangs in

49:01

the background as it has for for

49:03

months and kind of years now really dating back

49:05

to the Trump administration. Speaking

49:08

of intractable problems, let us go

49:10

to our nation's

49:13

Congress here just down the road from

49:15

us at the Brookings Institution from

49:17

my home here in Washington, DC, because

49:19

we have seen a fairly chaotic couple

49:21

of days coming out of the Republican

49:23

caucuses in both the House and the

49:25

Senate. For months now, we have been

49:27

talking about the need to provide additional

49:29

assistance to Ukraine. The Biden administration is

49:31

all on board for it. Senate Minority

49:33

Leader Mitch McConnell is all on board

49:35

for it. They have been some of

49:37

the most vocal supporters of this assistance.

49:40

But we have heard Republicans in particularly

49:42

the House, but also in the Senate saying, we

49:45

can't just do this on their own. We have other

49:47

agenda items we need to make a priority, and specifically

49:49

the border and immigration. We need to

49:51

get this deal tied to a border deal. We need

49:53

to link these things together. And by the way, let's

49:56

throw in aid to Israel on top of that, and

49:58

let's throw in aid to Taiwan as top of

50:00

that, more or less as sweeteners for certain pockets

50:02

of votes of people who might feel

50:04

strongly about the border, also feel strongly about Israel, and

50:06

feel strongly about Taiwan. That

50:08

deal has been in the works for months. We've seen

50:11

a gang of three, as I like

50:13

to think of them, a troika of senators

50:15

working on some sort of compromise, particularly around

50:17

border issues, which is kind of the most

50:19

complicated from policy perspective. They rolled out this

50:21

proposal over this week, and it was almost

50:23

immediately declared dead by both the fellow senators

50:25

and members of the House. Republicans

50:28

in the House said we're not interested in

50:30

any sort of dealing on the immigration or

50:32

on the border. That is coming just

50:35

a week or two after we heard reports that

50:37

former President Trump said, I want to make this

50:39

an election issue, don't make deals on the border

50:41

or immigration, undercutting the

50:44

suggestion that that was an appropriate trade to be made

50:46

for Ukraine assistance. And when

50:48

the House came out and said, we're not interested in

50:50

this deal, now it sounds like Republican senators are saying,

50:52

well, we don't want to vote for this deal and

50:54

put ourselves out there against our party and against potentially

50:56

our party leader if we don't think there's a chance

50:58

of actual law being made, more or

51:00

less shifting blame to the House, but nonetheless,

51:02

not being willing to move forward on this

51:04

sort of action there. So now it sounds

51:06

like Senate Democrats are getting ready to put

51:08

forward the aid package without the border deal,

51:10

going back to what was the plan that

51:12

Biden administration asked for at the end of

51:14

last year, which is straight up assistance for

51:17

Ukraine now paired with some assistance for Israel and for

51:19

Taiwan, I think is still in there as well. But

51:21

we don't know where any of this is going to

51:23

go. We'll see some votes on it later today. It

51:26

is all around a bit of a mess. Quinta,

51:29

I want to come to you on this. This

51:31

is a pretty, pretty messy situation

51:33

for Senate Republicans, for House Republicans, for

51:35

lots of other people. It's mixed in,

51:37

by the way, didn't mention this to

51:39

a failed impeachment of Homeland Security Secretary

51:42

Alejandro Mayorkas. It's mixed in

51:44

with a bunch of other, a failure to

51:46

pass a standalone Israeli assistance bill even through

51:48

the House. It is just a mess.

51:51

What do you make of it? What should we

51:53

be taking as the takeaway about this? Is this

51:55

about the challenges of immigration law? Is this about

51:57

the dysfunction of Republicans in the Congress? Who

52:00

is to blame for all of this? What explains this

52:02

weird pattern of conduct and where is it

52:04

gonna lead? Democrats in disarray,

52:07

obviously. This is a Democrats in disarray

52:09

story. There was an

52:11

excellent New York Times headline. I say

52:13

that sarcastically. That

52:15

was something along the lines of

52:18

failure of immigration bills shows the

52:20

difficulty of compromise. Like,

52:23

mm-hmm, mm-hmm. Doesn't

52:26

the failure of anything involving two people that

52:28

have such a difficulty of compromise? Look,

52:30

you ask me for something, I

52:33

give it to you, and then you slap it out of

52:35

my hand and punch yourself in the face. I

52:37

guess that's a failure of compromise. Be

52:40

careful when you're talking about my toddler,

52:42

okay? But look, is someone else here

52:44

who's like, yes, there is a clown

52:47

show aspect to this, but

52:49

I, and it says nothing

52:52

good about Republicans

52:55

in Congress. There's some interesting quotes

52:57

about Senate Republicans who are

52:59

basically saying, look, like the House Republicans

53:01

are driving the bus and they're insane.

53:04

So the bus is just spinning around in circles, essentially.

53:07

But I do think that it's

53:09

worth, I'm gonna be the naggy

53:11

scold here and say that, I think it's

53:13

worth focusing just for a minute on the

53:15

substance, right? So it seems

53:17

like now, because of some

53:20

machinations by Senate Majority Leader Schumer,

53:23

there may be another route to get

53:25

Ukraine aid through. I'm gonna not talk

53:27

too much about that because it

53:29

is being negotiated as we're

53:32

recording. So anything that I say

53:34

now will be OBA and we'll probably change five times

53:36

by the time that you hear this. But

53:38

when it comes to the border issue, I mean,

53:41

look, there's

53:44

a very good point that was made

53:46

on Twitter by Caitlin Dickerson, who is

53:48

an excellent immigration reporter for The Atlantic,

53:50

which is essentially that it's easy to

53:52

kind of laugh about how ridiculous this

53:54

is and how the

53:56

GOP was asking for some

53:58

kind of reform. around the

54:00

border. They were handed those reforms

54:03

and they declined to take them.

54:06

But on the substance, this

54:08

was like an aggressively right-wing

54:10

bill when it comes to

54:12

how we think about the border. And

54:14

it really underlines how,

54:16

in a lot of ways, and

54:19

I've said this a million times,

54:21

Stephen Miller has won. The ideas

54:24

about border enforcement

54:26

and asylum that would

54:28

have been far, far, far to the fringe

54:31

under any administration before Trump are

54:33

now so mainstream that they're being

54:36

accepted by Democrats as

54:40

a negotiating. No, they really are.

54:43

And the Democrats were essentially not asking

54:45

for anything along the lines of a

54:47

pathway to citizenship, anything like that in

54:49

this legislation. To be clear, because

54:52

somebody always makes this point when I complain

54:54

about immigration legislation, I'm not saying there aren't

54:56

problems with the immigration system or with the

54:58

way that the US handles

55:01

asylum claims at the border. There are.

55:03

But I think it's important to distinguish

55:05

between the actual problems

55:08

that exist and the

55:10

problems that this bill would address, which

55:12

are not the same problems. This

55:15

is in the in the realm

55:17

of saying, you know, do something

55:20

and waving your hands around and

55:22

creating a posture of, you know,

55:24

harsher enforcement, keeping people outside the

55:26

country that doesn't actually do anything

55:28

about the enormous backlogs that exist

55:31

in the immigration in

55:33

the asylum processing system already. And so I do

55:35

think it's important to keep in mind that, you

55:37

know, it's not

55:40

just that Republicans were offered something that

55:42

was right down the middle of

55:44

their policy priorities and rejected it. It's that

55:47

even if this deal had gone through,

55:49

it would not have solved the problem.

55:52

So obviously I agree with you that this bill

55:55

represents a much more restrictive

55:58

vision on immigration than we've had. in

56:01

the last several years from Democrats being willing to

56:03

consider. I guess I would quibble

56:05

a little bit with your characterization that this is like the

56:08

victory of Stephen Miller, think

56:12

among, you know, Americans or among among

56:14

Democrats in the sense, in the sense

56:16

that first, this idea that the

56:18

Democrats are the party of

56:21

like, are profoundly pro

56:23

immigration party, like that is relatively

56:26

new. Like that is, that is just

56:28

not historically been the case. Obviously,

56:31

it's certainly been the case probably since 2000s,

56:34

it's Obama, all those things are true.

56:36

But this this idea of Democrats as

56:38

self consciously the party of I don't

56:40

want to say open borders, such a

56:42

fraught term, but like, you know, extremely,

56:44

extremely welcoming of immigrants. That's

56:46

a new thing. And it's just not been historically

56:49

the case. The other thing that I would say

56:51

is, I think that

56:54

Biden is not simply doing

56:56

this to try to get aid

56:58

to Ukraine. I think he's

57:00

doing this in part because he realizes that

57:03

he has a lot of vulnerability, not

57:05

just among Republicans who cares and are voting for him,

57:08

but among independents and even some mainstream

57:10

Democrats on this immigration issue. Right? I

57:12

mean, one thing that's been just really

57:15

remarkable over the last year is seeing

57:18

the response of blue

57:20

city mayors and other leaders

57:22

to what happens when

57:25

they experience a large influx

57:27

of a Si Lease. No,

57:29

right. When when when people are

57:31

put on a bus, driven to

57:33

a remote location in your city that is

57:35

not anywhere near the services that they need

57:38

and dropped off. Yes, that creates

57:40

a problem. But I think

57:42

that's a caricature. I mean, obviously, that has happened, right?

57:44

We're not just talking about the state government. Yeah. But

57:46

what you're describing is the Martha Vineyard, like

57:49

the Martha's Vineyard. It happened in

57:51

DC repeatedly down the street from

57:53

me. Let's say you didn't have

57:56

red state governors, right? Pushing

57:58

this, right? You would still have a

58:01

relatively large inflow of migrants

58:04

and asylees going to a lot

58:06

of these cities, right? Because that is where

58:09

there are social supports. That's where a lot

58:11

of these communities are, right? And

58:13

I think what we've seen is that people,

58:16

not just Republicans, but also many

58:18

Democrats, are much more supportive of

58:21

very open and generous asylum policies in

58:24

the abstract and much less so, not

58:26

exclusively so, but much less so when

58:28

they're faced with the

58:30

actual logistics of dealing with that. And so,

58:33

you know, I think that this

58:35

is Biden also frankly, taking a

58:37

political gamble that a more restrictionary

58:39

view on immigration is frankly,

58:41

politically beneficial to him among his own constituents. You

58:43

don't have to agree with that. But

58:46

I don't think this is just like a right

58:48

wing plot. I mean, it's just not. No,

58:50

what I'm saying is that US positions

58:53

on immigration across the board have moved

58:55

to the right. Yeah. Yeah. We're excited

58:57

to be agree. Yeah. Yeah. So,

58:59

okay. So that's, that's what I'm

59:01

saying. And I also think that

59:03

the fact that the Democratic Party

59:05

and people generally are so willing

59:07

to retreat

59:10

into a posture in which a border

59:12

is some kind of inviolable concept that

59:14

cannot be crossed is repulsive

59:17

and sad, frankly. Like I think that there

59:19

is a extent

59:21

to which we flatten this into a

59:24

sort of, oh, horse trading politics. The

59:26

Democrats have clearly decided that that's good

59:28

politics. I'm not a pollster. I can't

59:30

evaluate that, but I worry

59:32

a great deal about the extent to

59:35

which the populist backlash over the last

59:37

few years has led to a

59:39

overall rejection of frankly, the post-war ideal

59:42

of, you know, a right to have

59:44

rights that is shared by every person

59:46

regardless of where you are on the

59:48

map. I guess so. And

59:51

so look, philosophically speaking, I'm very much sympathetic

59:53

to you, but I

59:56

think that this kind of binary is not

59:58

that helpful because you, you're

1:00:00

going to have to draw some line somewhere,

1:00:02

right? I mean, let's just zoom out for

1:00:04

a second from this particular issue, right? Consider

1:00:07

climate migration, right? And

1:00:09

people, I think, having a

1:00:11

very plausible asylum case when

1:00:14

their homeland becomes

1:00:17

uninhabitable because of climate change and that causes

1:00:19

all sorts of violence and stuff like that,

1:00:21

right? You're dealing with

1:00:23

potentially tens, if not hundreds of millions

1:00:26

of people doing migration over the

1:00:28

next two decades, let's

1:00:30

say, right? And I

1:00:32

think when the United States, not just red

1:00:34

states, but blue states as well, are faced

1:00:37

with that reality, right? Look at

1:00:39

this way, responding to those people's concerns with,

1:00:41

yeah, but there's this post-war consensus that people

1:00:43

have rights to asylum is not

1:00:45

gonna be effective. And you're gonna

1:00:48

have to draw some lines that

1:00:51

you may find extremely distasteful, but I guess I'm

1:00:53

not sure practically what the solution is. I

1:00:56

just don't think this is a winning or

1:00:59

realistic policy proposal for those

1:01:01

folks who, again, I include myself on this, generally

1:01:04

would like a lot more immigration, including asylum, but I just

1:01:06

don't see it working. I think we're talking

1:01:08

past you there a little bit on this, but I do

1:01:10

think there's an underlying point that I think Quintus

1:01:13

makes this very valid. I suspect you'll agree with Alan, which

1:01:16

is that the issue here that

1:01:18

we're seeing is being framed

1:01:20

as asylum as fundamentally being

1:01:22

the problem as

1:01:25

the idea that we can have

1:01:27

a process that complies

1:01:30

with these humanitarian instincts that

1:01:32

are informing our refugee

1:01:35

conventions and the variety of other international

1:01:37

and domestic laws that are supposed to

1:01:39

be guaranteeing humane treatment for people who

1:01:42

are fleeing the United States necessarily. The

1:01:44

assumption has been in the past, the idea has

1:01:46

been in the past, we can

1:01:48

do things to address the border crisis without

1:01:51

really having to fundamentally compromise those. But

1:01:54

I do think there has been a move. I

1:01:56

don't think it actually begins with Stephen Miller, that's the part I

1:01:58

would be, I think he's

1:02:00

as much symptomatic as he is a cause. But

1:02:03

nonetheless, there has been a shift over the last 10

1:02:05

years, 15 years, of people

1:02:08

being increasingly willing to say, there's

1:02:10

just no good way to do asylum. We just

1:02:12

gotta start cutting back the routes to do it.

1:02:14

Now, it's not fair to say, I don't think

1:02:16

that the Democrats have gone as far as Stephen

1:02:19

Miller, certainly, or even most Republicans, to whom Stephen

1:02:21

Miller is to the right, on

1:02:23

this issue set. Like even in

1:02:25

this latest deal, there were certain

1:02:27

carve-outs of higher thresholds and procedures

1:02:29

for particularly vulnerable populations, although whether

1:02:32

those align with like the

1:02:34

full universe of people who are supposed to be getting

1:02:36

protective treatment is an open question, but at

1:02:39

least separated children, people who are at imminent

1:02:41

risk of violence or public health risks, things

1:02:43

like that. They had carve-outs for that were

1:02:45

fought for by Senator Murphy

1:02:48

and people involved in this process as

1:02:51

a condition of accepting a cutoff

1:02:53

of asylum, which is what this authority would have

1:02:56

done. Essentially, the immigration deal, it's a main mechanism

1:02:58

would have done, would have said, after a certain

1:03:00

point, if you get X number of people across

1:03:02

the border in a given time period, either

1:03:05

as a discretionary basis or on a mandatory

1:03:07

basis, if it gets a certain threshold, the

1:03:09

border's cut down. No more people coming across

1:03:12

asylum be damned. I

1:03:14

do think that's actually a fundamentally problematic

1:03:16

framing to say like, oh, we can

1:03:18

shift the burden of this onto the

1:03:20

most vulnerable foreign populations. And

1:03:22

it is horse training, right? Like it is political horse

1:03:24

training, that's absolutely right. But so

1:03:26

would be, frankly, if the Biden administration say, sorry, Ukraine,

1:03:28

we're done. And we're not willing to

1:03:31

do that. We're willing to say,

1:03:33

and correctly, I think, I will say

1:03:35

like Ukrainians deserve support and need

1:03:37

support, it should have it. And

1:03:39

that's in our interest. But I also think

1:03:42

there's something in our interest to preserving fundamentally

1:03:44

this idea that there should be conduct for

1:03:46

people who genuinely have need. And

1:03:49

that means finding a better way to do

1:03:51

asylum, not framing asylum as the problem. But

1:03:53

that latter framing is what people have bought into. Now,

1:03:56

you may be able to justify it as a temporary

1:03:58

basis, as a necessary basis to address the crisis. crisis

1:04:00

as a politically expedient basis. And I only

1:04:02

think those are fundamentally wrong, but

1:04:04

it is the shift that we see. And frankly,

1:04:06

it's been the Biden administration's approach for the outset.

1:04:08

Like we saw the border team that came in

1:04:10

with the Biden administration resign in the first few

1:04:12

months they were in office, right? Like it

1:04:15

has been pretty clear from the outset, this was a space

1:04:17

that they weren't going to fight political fights on. And

1:04:20

maybe they have to do it that way. Politics is hard.

1:04:22

Like I'm the first person to subscribe to that. And like,

1:04:25

nothing's perfect. And I get that. But

1:04:28

it sucks when you care

1:04:30

about this population of people that

1:04:32

is being disadvantaged of this for political

1:04:34

reasons in a way that we really did

1:04:37

think 30 or 40 years ago, we had all

1:04:39

agreed as international community that that they deserve better

1:04:41

than that. Does that sound right, Quinta? Does that

1:04:43

seem fair? Yeah, that's exactly right.

1:04:45

And the sort of slow motion distraction of

1:04:47

asylum and moving consensus moving against sort of

1:04:49

the viability of asylum as an option is

1:04:51

exactly what I mean when I talk about

1:04:53

the collapse of the post-war consensus. And to

1:04:55

be clear, I'm not just talking about the

1:04:57

United States here, right? Like a lot of

1:04:59

European countries, their preferred border policy is literally

1:05:01

let them drown. So this

1:05:04

is a global problem. And I also

1:05:06

think like, yes, it's linked to climate change.

1:05:08

And when people talk about the worry

1:05:11

that climate will lead to

1:05:13

a hardening of borders and a movement

1:05:15

toward a sort of fascism

1:05:18

is a hard word, but that

1:05:21

that mode of politics, this is what

1:05:23

they are concerned about. Yeah,

1:05:25

look, I think all that is fair. I think it's very, this

1:05:27

is very clarifying conversation to me. Again, none

1:05:29

of what I'm trying to say should be should

1:05:31

be meant to say that, oh, the Republicans are

1:05:33

putting forward this plan in good faith. And of

1:05:35

course not, right. But like, at some point, it's

1:05:37

just not I'm not that interested in talking like

1:05:39

for the 87th time about how Republican

1:05:42

immigration plan is bananas. My

1:05:44

interest more is more broadly the idea

1:05:46

that, you know, and maybe

1:05:48

this is from where I sit as like

1:05:51

a law professor that reads immigration scholarship, and

1:05:54

once a month reads an article saying, look, you

1:05:56

know, asylum, the very concept

1:05:58

of asylum should be Expanded, you

1:06:00

know 10 a hundred a thousand

1:06:02

times because right I'm not I'm not

1:06:04

belittling these these arguments I'm very sympathetic

1:06:07

to them because if you were to

1:06:09

actually say what is the class of

1:06:11

people right that can credibly claim? right

1:06:14

true misery in their places

1:06:16

of Residence right

1:06:18

danger Broadly defined

1:06:21

you have it is actually a massive

1:06:23

number and my concern is that the

1:06:25

bad faith and the kind of clown

1:06:27

carnus of Republicans may

1:06:30

blind some people on the other

1:06:32

side or may get them to

1:06:34

underestimate the challenge of crafting

1:06:37

a Asylum system

1:06:39

that is on the one hand

1:06:42

actually responsive to the

1:06:44

plight of these You

1:06:46

know millions tens of millions potentially

1:06:48

hundreds of millions of the

1:06:50

most disadvantaged and marginalized people in the world with

1:06:53

the realities that Countries

1:06:56

don't generally like taking that many

1:06:58

people in and simply saying

1:07:00

yes, but we all agreed in the

1:07:02

post-war Situation or we there

1:07:04

was this post-war consensus just repeating that over and

1:07:06

over again I don't think is going to get

1:07:08

us there. And so that's what

1:07:11

I'm trying to just point

1:07:13

to Right look and when

1:07:15

we have that debate I will happily be on the

1:07:17

side of you know We

1:07:19

should just let more people in and we'll just deal with it Right,

1:07:22

but I think that's a debate that's gonna

1:07:24

have to happen and it's it's a real

1:07:26

one Well folks, we

1:07:28

are out of time together

1:07:30

today despite this very happy reunion

1:07:34

I'm feeling very much back in the swing of things in

1:07:36

our conversations But this would not be

1:07:38

rouse screen if we did not leave you with some object

1:07:40

lessons to ponder over in the week to come Alan

1:07:43

what do you have for us this week guys?

1:07:45

I have a sub stack. I Did

1:07:47

it I finally did it I feel like there should

1:07:49

be a sad trombone you hero You

1:07:53

probably pull the trigger to set up a substrate I

1:07:55

did some I did some real contemplation did a lot of

1:07:57

journaling and I decided that what the world needs right now

1:08:00

How is one more sub-stack? Here's

1:08:02

what I'll say as a member of the leadership

1:08:04

team of Lawfare. Here's what Lawfare needs more of

1:08:06

its authors to start publishing at other places on

1:08:09

sub-stack. Look, so here's

1:08:11

I have two reasons to have

1:08:13

this sub-stack. One reason is

1:08:16

that six months

1:08:18

ago, my amazing wife, who

1:08:21

is this like wordplay pun savant,

1:08:23

just came up with such a good title if

1:08:25

I would ever start a sub-stack, which is The

1:08:27

Rosie Outlook. It just

1:08:29

seems like such a waste not to use that.

1:08:33

So that's one reason. And the other reason

1:08:35

is more substantive. Couldn't go with rose-colored glasses.

1:08:37

It could have gone with it. It could

1:08:39

have gone with it. That's pretty good, too,

1:08:41

actually. That's pretty good, too. And the other

1:08:43

reason is I actually really like

1:08:45

email newsletters that just collate random

1:08:47

links to things. I find that

1:08:49

so useful. And I

1:08:52

actually really like, through the week, just jotting down

1:08:54

cool things I've read and stuff about them a sentence

1:08:56

or two. And so it's a fun thing for me to write.

1:08:59

And hopefully, the four people so far who have

1:09:01

subscribed to this sub-stack might find it useful. I

1:09:03

expect it's going to be six people right after,

1:09:06

because you, as my friends

1:09:08

and co-hosts, are contractually slash

1:09:10

morally obligated to subscribe. Look,

1:09:12

I subscribe to you. I subscribe to you. Definitely,

1:09:15

for free. OK. Yeah.

1:09:18

So anyway, come join. It's

1:09:20

some links, some thoughts. All

1:09:22

right. I have thought about

1:09:24

setting up. Do you have a sub-stack, Quinta? I feel like you could

1:09:26

have just put a plug in. I'm

1:09:29

subscribed to it. Yeah. Well, I haven't sent

1:09:31

anything out in a million years. Well, so

1:09:33

I created one because when Twitter was first

1:09:35

going under under Musk, I wanted to collect

1:09:37

the email list, essentially. But

1:09:40

I haven't posted in a while.

1:09:42

And part of that, sorry, Alan,

1:09:44

is that they've come out as

1:09:46

affirmatively pro-Nazis on their services. They

1:09:48

are not affirmatively pro-Nazis. OK.

1:09:51

We can have this conversation later. I

1:09:53

got to say, as much as I love

1:09:55

Casey Newton and Platformer, I am so unimpressed

1:09:58

with that particular stance. God bless sub-stack. and

1:10:00

what it's doing. And if there are four Nazis on

1:10:02

that platform with 17 followers, that

1:10:05

is a price well worth paying.

1:10:07

We can separate because it's never

1:10:09

done substantial misrepresentation of the reporting

1:10:11

there. But that's a conversation. This

1:10:13

platform are still on sub sec. No, they

1:10:15

move. They move. He's reporting about this. Casey,

1:10:18

who by the way, is like the leading

1:10:20

tech reporter on content moderation. And I think

1:10:22

I think Casey's great. But I don't

1:10:24

have to I don't have to agree with his with his normative

1:10:26

take. I haven't been able to argue like this

1:10:28

for a few months. I really miss this. I'm glad I brought a

1:10:33

social media. That's great. The

1:10:36

thing that really get heated about social media. Not

1:10:40

only have we not been able to argue, but

1:10:42

I recall a few instances during my absence where

1:10:44

Quinta went out of her way to agree with

1:10:46

me on rat sec. And I just thought it

1:10:48

was like horrible and it happened. Like I was

1:10:50

so good. She was like channeling Alan and I

1:10:52

was like, Oh, no, something very bad happened.

1:10:54

So be so much less awkward for me if it happened.

1:10:56

It would be great. Well,

1:10:59

what do you have for us by way of object lesson

1:11:02

this week? Mine is really boring.

1:11:04

And I apologize. So tomorrow, when you listen

1:11:06

to this, the Supreme Court will be in

1:11:08

the midst of or will have finished oral

1:11:11

arguments and Trumpy Anderson, the 14th

1:11:13

Amendment disqualification case. So I've been

1:11:17

all 14th Amendment all the time. And as

1:11:19

part of reading up, I've

1:11:21

been reading Mark Graber's book on

1:11:23

the 14th Amendment. It is actually the

1:11:25

first book in a planned series, but

1:11:27

there's only one so far. It's called

1:11:29

Punished Trees and Reward Loyalty. And the

1:11:32

thesis as far as I understand it is

1:11:34

essentially that the original design of the 14th

1:11:36

Amendment, including Section Three was much

1:11:39

more focused on essentially

1:11:41

ensuring partisan Republican

1:11:43

control of the

1:11:45

government and ensuring that loyal

1:11:48

unionists were allowed in

1:11:50

positions of political power and were

1:11:52

protected than is acknowledged today. So

1:11:55

that leads to some interesting

1:11:58

outcomes in terms of how you think about the the 14th

1:12:00

Amendment, one of them is that

1:12:02

it does mean that the way that we

1:12:04

think about Section 3 should perhaps be pretty

1:12:07

expansive in terms of who it

1:12:09

disqualifies and why, but it also turns

1:12:12

on its head, I think, some

1:12:14

contemporary thinking about the role of

1:12:16

protections for freed people in the

1:12:18

14th Amendment and what that means.

1:12:20

So super interesting and thought-provoking. I've

1:12:22

definitely been enjoying it and

1:12:25

recommend if anyone really just wants to

1:12:27

nerd out on the 14th Amendment. Yeah,

1:12:30

let's do it. I

1:12:32

think you have a lot of company this week on that

1:12:34

particular mission, but that's okay. I think

1:12:36

you're going to have the whole fair office with

1:12:38

you tomorrow as I have also been digging through

1:12:41

a bunch of Amikin's priests this week and regretting

1:12:43

my choices, to say the least. Well,

1:12:45

for my object lesson this week, I have something

1:12:47

from the annals of social media myself. I'm

1:12:50

not a big social media guy, I'm not going to

1:12:52

lie. I find it mostly annoying and detached from it

1:12:54

back before, from Twitter at least, back before it was

1:12:56

cool. Although now I feel like I've gone too far,

1:12:58

I may try and use my paternity leave to re-engage

1:13:00

a little bit or figure out what the

1:13:03

new social media platform for me and my

1:13:05

experience is. But I do miss the occasional

1:13:07

moment that pops up where you

1:13:10

see a great cultural sliver or

1:13:13

cultural spark light, a wildfire.

1:13:16

That happened this past week or perhaps the

1:13:18

week before, I can't remember, on Twitter when

1:13:20

a user named James Holzhauer, who

1:13:22

evidently is quite famous, I did not know who he

1:13:25

was, but he's a professional gambler and game show contestant,

1:13:28

tweeted out the sentence, who got that one

1:13:30

Jeopardy clip? And led

1:13:32

to an amazing sequence of people tagging

1:13:34

him in thousands of Jeopardy clips that

1:13:36

are all hilarious and or amazing in

1:13:38

different regards. And I have spent multiple

1:13:40

hours, usually in the middle of the

1:13:42

night when my son won't let me

1:13:45

sleep, looking at and

1:13:47

reading and watching these videos, listening, they

1:13:49

are amazing. There are so many good

1:13:51

ones because Jeopardy was just on the

1:13:53

air for so long. And I, as

1:13:55

a kid who grew up mostly by

1:13:57

television, and particularly public television, my

1:13:59

parents not have cable. I watched so much

1:14:01

Jeopardy! back in the day and I remember a

1:14:03

few of these only now I kind of get

1:14:05

them in context. It's kind of amazing. Other

1:14:08

ones I'm just shocked to see. They're great. The one

1:14:10

in particular I will say, which I'm not going

1:14:12

to describe since it's a little vulgar, but

1:14:14

it's a woman who makes either the

1:14:16

filthiest, the most hilarious joke in her

1:14:18

introduction with Alex Trebek or

1:14:21

says something so vulgar and hilarious and does

1:14:23

not even realize it because she's got the

1:14:25

most stone cold execution you have ever seen.

1:14:27

It is hilarious. One of the best things

1:14:29

I have ever seen on the internet. I

1:14:31

think it's phenomenal. So check out this whole

1:14:33

thread and that clip in particular. It is

1:14:35

so worth it. Just to

1:14:37

be clear, though, the best Jeopardy! is

1:14:40

obviously SNL celebrity

1:14:42

Jeopardy! Like without question.

1:14:45

You know, I like those bits. They're fine. Some

1:14:47

of these clips honestly rival them for how hilarious

1:14:50

they are. Really? Oh, they're so

1:14:52

good. I'll never get over name this

1:14:54

continent Asia. But

1:14:57

by far the biggest clip on this is not the one I

1:14:59

was talking about. This is also a little bit dirty, but I

1:15:01

am going to say it. And it's the most retweeted. One of

1:15:03

these was a guy who said that they

1:15:05

screen capture of somebody on his screen were on Jeopardy!

1:15:07

They write their name on, you know, when the little

1:15:09

blue screen with the white marker. And

1:15:11

he says the night before he got on the show, I told

1:15:13

this I showed this guy how to write his name. So it

1:15:15

looked like a penis on a bar napkin and he actually did

1:15:17

it. That's how

1:15:20

he has written his name on

1:15:23

the Jeopardy! screen. That's pretty amazing. And

1:15:25

that's not even the one I'm talking

1:15:27

about. The vulgar hilarious Jeopardy! moment. So

1:15:29

prepare yourself. It is pretty phenomenal. Well

1:15:32

folks, that brings us to the end of

1:15:34

this week's episode. But of course, remember that

1:15:37

rational security is a production of Lawfare. So

1:15:39

be sure to visit us at lawformedia.org for

1:15:41

our show page with links to past episodes

1:15:43

for our written work and the written work

1:15:45

of other Lawfare contributors and for more information

1:15:48

on Lawfare's other phenomenal podcast series, including the

1:15:50

aftermath now out in season two. And

1:15:52

be sure to follow us on Twitter or X at RATL

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and other special benefits. Our audio

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engineer and producer this week was Noam Osbun of

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Goat Rodeo and our music as always was performed

1:16:09

by Sofia Yan. We are once again edited by

1:16:11

the wonderful Jen Patchehowell. On behalf of

1:16:14

my co-host Alan and Quinta, we're

1:16:16

back. I am Scott R. Anderson

1:16:18

and we will talk to you next week. Until

1:16:21

then, goodbye.