[Intro]

Brad Heath: Part of what I wanted to do was go to the places where there is actually more crime in D.C. and say, you know, "Are there any soldiers here, and do you want them here?" Right? You know, "If they, if they're here to nominally make the city safer, would you like them to be in the parts of the city that are less safe?" And I did not get a lot of enthusiasm in response to that proposition.

Natalie Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare, with Brad Heath, a reporter at Reuters.

Brad Heath: So the extent to which we still don't really know, like, who tells you where to go every day, who gives you your marching orders, what exactly is the training regimen that you have to have before you come and are on the streets of D.C., and is it different for different units? I would have thought these would be easier questions to answer.

Natalie Orpett: Over a year ago, President Trump sent 800 National Guard members to the streets of Washington, D.C., citing a purported crime emergency. Since then, thousands of armed troops have been deployed to D.C., usually traveling in groups of four or more, seemingly always armed.

Brad has been reporting on the Guard's presence in D.C. and recently published an article titled “Trump Put Thousands of Soldiers on Washington's Streets. They Seldom Stop Crime.” We talked about what he found after reviewing thousands of criminal cases charged in D.C. Superior Court, what he learned from talking to everyone from National Guard members to D.C. officials, and how it all maps onto the legal analysis of whether the Guard is operating lawfully in D.C.

[Main Podcast]

So Brad, you recently published a story in Reuters looking into the National Guard troops that are deployed here in D.C. As Lawfare listeners know we've been covering domestic deployments really closely, including the National Guard, and deployments in D.C. have been a, let us say, particular preoccupation of mine. So I'm delighted to have you and to talk about your really impressive work digging into exactly what has been happening. We have found it very frustrating and concerning from a rule of law perspective how much of a lack of transparency there is in terms of the role of the Guard in D.C.

So before we start talking about exactly what you found, I'm just curious, what drew you to this topic? How does it compare to your normal beat, and, and how did you arrive at it?

Brad Heath: I write about law enforcement a lot, so I'm interested in kind of how the government is using all this power, but this one was a pretty simple one to me, and it, it, I came at it two ways. One is this is kind of President Trump's signature, "I'm gonna get tough on crime," right? You can't get tougher than putting armed soldiers on the street. But also, I work in D.C. I take the Metro. I come up every day, and there's soldiers at the subway stop, and I've just been really curious, like, now that they're here, and we got up to, like, 5,000 this summer, what are they doing?

Natalie Orpett: Yeah. So you went about answering the question of what they're doing through a prism of what they're doing with respect to fighting crime. That was one of the two missions that was bringing the National Guard to D.C. That one is the “D.C. Safe and Beautiful” mission the other one being the “America 250” mission, which was supposed to be for sort of managing crowds and such around the 250th anniversary of, of the United States on July 4th, though that mission was a little bit convoluted, let us say.

But you, you looked in particular at crime, as you say. And you undertook this sort of two-part process that you talk about in the piece. One, looking at a real empirical analysis of court filings, and then a second, doing a lot of just on-the-ground reporting, figuring out what was going on. So I want to start with the first piece. Tell us about this analysis you did with respect to filings in the D.C. Superior Court and why that was an approach that you took.

Brad Heath: So we started with the idea that if the soldiers are here to improve safety, to deal with crime, one of the places we should expect to see them is, like, rubbing up against law enforcement. You know, they're participating in some way in making the city safer or detaining people, stopping crime, whatever it might be.

And those tend to get memorialized in this, the local city court, which is where almost all other criminal accusations in, in the District of Columbia go. So we obtained what are known as Gerstein affidavits. They're like the initial charging document for every publicly available superior court case in the year since the National Guard were first deployed, which is 17,000 and change charging documents, and, and went through those to just see like, is there National Guard here? And if so, like what, what are they doing? What, what's their role? You know, did they detain someone? Did they witness something? You know, in a surprising number of cases, they were the crime victims.

Natalie Orpett: Yeah, and as you found also, there were a couple where they had perhaps committed crimes.

Brad Heath: There, there were two where soldiers were charged with crimes for off-duty weapons possession. Both of those got pretty quickly dismissed by the U.S. Attorney's office.

Natalie Orpett: Yeah, so before we talk about what you found in there, did, did you look at all at whether these cases, these charges ended up resulting in convictions, or was that sort of separate from your analysis?

Brad Heath: We didn't look through the final dispositions on m- in, in any systematic way, and a lot of them had not been fully resolved. I mean, y- you know, some number of these are pretty recent. It just takes months to get through the court process, and, and some number of these end up with kinda, kinda mental health issue that makes even a 2025 case take a bit longer. But if somebody's coming up and like threatening a National Guard soldier or, or some of the stuff they're, they're seeing on the street downtown, like it is, it is not a quickly disposed of case.

Natalie Orpett: Right. Okay, so tell us about the numbers here. What did you find in terms of looking at all of these Gerstein affidavits, all of these cases, and to what extent did the National Guard show up in one of those capacities?

Brad Heath: The National Guard made an appearance in one form or another in 1.3% of the criminal matters that were handled in D.C. in the year since they arrived. So that's 217 cases out of, I think, about 17,000 that we were counting at the time.

And about half of those are the Guard acting in a way that you might think, you know, soldiers are doing law enforcement, right? They, they've stopped somebody. You know, they, they saw a shoplifter and chased him down. And actually, oddly enough, last summer I was sitting in the basement in superior court and ended up on a bench next to the very first guy arrested by National Guard soldiers who I think had beaten up a park police officer and then run away, and it was some soldiers very early in the deployment who, who tackled him. So, so that flavor of stuff. That, that's about half of what we found in the court records.

Natalie Orpett: So the overall number is obviously quite small. Did that surprise you as an initial finding?

Brad Heath: Yeah. I mean, well, yes and no, right? Because part of what animated this is when I go to work and come home from work, I see the soldiers, but I don't, I've never actually seen them do anything. But the sheer numbers in this deployment, you know, around the summertime, we got up north of 4,600 troops, like close to 5,000. So these soldiers outnumber the sworn officers on D.C.'s police department, like considerably, and they cost more than D.C.'s police department considerably on a daily basis.

And, and you know, they're, they're here in a city that's, if, if you just take the, the metropolitan police staffing, the local police force for D.C., it is the most policed big city in the United States by far. And that's before you add in all the other weird things, you know, the, the Capitol Police, the Zoo Police, the Park Police, the Secret Service that make D.C. like the, it, you never go around downtown and feel like, "Wow, there are no cops here," you know? So yes, like they, just the sheer numbers, I would think at some point they must do something.

Natalie Orpett: Yeah. It's, it's interesting. It, we'll talk about this more throughout, but depending on the angle you're coming to this question from, there's a way to think of that as a positive thing because at Lawfare, for example, we've been asking a lot of questions about whether it is even legally permissible for the National Guard to be conducting law enforcement activities like crime fighting. And so from that angle, a small percentage of cases having any involvement by the National Guard is arguably a positive thing.

On the other hand, as you say, from a why are there 5,000 armed military personnel roaming the streets and standing on the corner and scaring little kids and all sorts of people for all sorts of reasons if they're not doing anything when they are supposed to be here according to the mission authority and the declaration of crime emergency that the president invoked in order to bring them here, the numbers aren't actually showing that. So it is an interesting sort of dynamic.

Brad Heath: I think there's some view in the District too that having the National Guard standing around the Mall near the White House at metro stations and not really doing anything is a pretty important victory, right? That, that there, there's some number of people in D.C. and in D.C. government who don't want the Guard to be doing more than they are because that creates opportunities for things to go kind of haywire.

Natalie Orpett: Yeah, talk more about that. Who, who is of that opinion, and what do you think about it?

Brad Heath: You know, it, it, I've certainly heard in reporting this, in talking to people in the community that, you know, yes, we are not seeing soldiers, for example, east of the river on the other side of the Anacostia from the Mall, where crime is a bigger problem and you don't see as many soldiers. And a lot of people there don't really wanna see as many soldiers.

Natalie Orpett: Okay, so let's shift to these three categories that you used in your piece to sort of explain the type of involvement of National Guard that you found in the Superior Court filings and these affidavits that you mentioned.

So the first was instances where the Guard stopped the suspects themselves without the involvement of D.C. police, which is much more looking like an arrest. Legally, there's a sort of complicated line between detention and arrest, which we've talked about in other contexts. But tell us about that one first. So what did that look like? Any cases in particular stand out to you in that category?

Brad Heath: If you look at the type of thing where the National Guard is actually out detaining people on the street, it is like when I was a young reporter, I would have to go read the police blotters every day, and they, you know, the police just go to all these really petty, trivial crimes, and that's a lot of what the National Guard has been involved in downtown, right? They, they have stopped people who have jumped the gates on the subway. They have occasionally gone after shoplifters, right? So they, there was one fairly recently where a guy stole two Slim Jims, like the, the beef jerky sticks from a CVS. They're worth about seven dollars, and, and soldiers stopped him. There was a woman who, she was in a 7-Eleven and drank a 20 oz A&W Root Beer and, you know, I, I forget if it was four or six soldiers detained her. She didn't pay for it. So they, a lot of these are, like, not very serious crimes. They have also broken up some fights. There's some assaults that they've sort of put themselves in the middle of, but, but for the most part, it, it's petty stuff.

And then there, there's a second bucket there, too, where, you know, they, they are largely deployed around the subway, so the subway has its own police force. They might be stopping someone, and the National Guard will help. They might be, you know, yelling, "Stop that guy," and the National Guard will, like, be at the other end of the platform and stop that guy.

Natalie Orpett: Got it. And then, if I recall correctly, your third category was instances in which the National Guard were witnesses to a crime, and that's how they show up in the affidavits. Tell us about that category.

Brad Heath: There, there's a variety of cases where, you know, you put enough people on the street, eventually they're gonna see something. So they, they have seen everything from a homicide down by the, the wharf and all the way to, you know, someone chalking on a, a statue or a flagpole outside the train station.

One of the people was wearing a banana costume, right? They, they witnessed this. They were, they, they told the police what they saw. They did not actually stop the banana costume to chalking. So there, there's I think 30 odd cases like that where, where in one way or another, or another, they provided information to the police but didn't actually like lay hands on somebody.

Natalie Orpett: Gotcha.

Brad Heath: And that's the sort of thing you or I might do on the street too, right? If you read charging documents, they are, they are full of statements from witnesses of store managers and passersby and all this stuff.

Natalie Orpett: Right. I know, as you rightly pointed out, a lot of these cases haven't had a chance to actually make their way through proceedings yet. But out of curiosity, do you know if in any of those cases National Guard ended up being witnesses in actual trials?

Brad Heath: I had heard that some were going to be, I, I talked to lawyers who were keen on bringing them back to testify in a couple trials, but you know, most D.C., especially petty cases, don't go to trial. They, they are resolved with the police. So the ones that I have seen resolved have mostly been pleaded out in the way they normally are.

Natalie Orpett: And I'm just curious, as you're working through these numbers and it's, you know, a much smaller universe of cases than one might expect, although as you say on the other hand, maybe it's very predictable. But how did you arrive at these three different buckets and, and how did you think about organizing that way?

Brad Heath: I mean, the nice thing, sometimes I deal with like millions and millions of records, so it's actually kind of refreshing to deal with 217 where I can just literally read every word of everything. And, and it just kind of became clear, you know. So we started with three, with, with more than three, but they kinda collapsed, right? So there's the National Guard actually detaining some- like single-handedly apprehending someone. Then there's assisting, witnessing. There's another category where they don't really appear to have done anything.

You know, the, the, the example we led the piece with was a, a fairly nasty sounding assault outside a, a nightclub not far from downtown, where three cops roll up and find a, a man stomping on a young lady on the curb outside the club. And so they charge him, and that, that case is still going on. But at the end of his report, you know, he makes a point of noting that there were 15 National Guard members on patrol in the area who didn't do anything at all.

Natalie Orpett: It's remarkable. Sort of undercuts the deterrence claim.

Brad Heath: The other bucket is where, where the soldiers are themselves victims, right? Which was, that bucket was bigger than I thought. You know, there, there was last year really horrible shooting very close to the White House where, where two soldiers from West Virginia were shot, one of them fatally. You know, but, but there's so much everyday kind of victimization where the National Guard soldiers who are in D.C. have been, you know, spit on. I think we counted nine spittings, pushed.

Natalie Orpett: And those are actually charged?

Brad Heath: Yeah, those are charged. And they tend to be charged as a, an assault on a police officer because my understanding now is if not all of the soldiers on the street, at least a large number of them are deputized as U.S. Marshals. So, so to spit on them is to spit on a police officer, which is a more serious charge than spitting on you or me. So, yeah.

And then there are those people who make threats. Somebody threatened to shoot them with a bazooka, which I don't believe he had a bazooka, but that, that was the charge. There was one this actually happened after the piece published, but I saw it a couple of days ago, where someone was just walking around one of the metro stations filming them, and was arrested after being asked to leave and not doing that.

Natalie Orpett: Interesting. So since your, your typical beat is doing a lot of crime reporting, I'm, I'm curious of your sense of whether those charges were similar to what you would have seen against regular MPD or whether you're seeing more charges or sort of differently natured charges because National Guard were the victims rather than MPD officers.

Brad Heath: I don't really know the answer to that. I suspect that if you spit on an MPD officer, you are gonna get charged for that. I suspect that if you I actually don't know what would happen if you told an MPD officer that you're gonna shoot them with a bazooka while not possessing a bazooka. I, I probably wouldn't recommend it, right? I don't know. You know, the, the police tend to take assaults and threats against the police pretty seriously, no matter who's doing it or, or when. But some of these are also, like, so, you know, when you, when you write about crime for a national publication, you're not usually writing about a simple assault misdemeanor.

Natalie Orpett: Right. Okay, I have a question that I think I know the answer to, but I'm going to ask it anyway, and I will give folks the context that this is one of those things that when you're obsessing over the legal intricacies of whether all of this is even permissible, you care about things like what is the status under which these National Guard are operating? Is it Title 10? Is it Title 32? Is it state active duty, and where are they from? Because all of these are factors that influence the legal analysis of whether law enforcement activities are okay. So my question for you, after having reviewed these affidavits and learning about some of these cases, is, is there ever anywhere any indication of these sorts of facts about the National Guardsmen themselves?

Brad Heath: No, I, I don't think that ever shows up at all in any of the charging documents. May- maybe it gets fleshed out a little further in litigation, but, but in a lot of these cases, it wouldn't really matter. You know, the, the actual arrest is made by an MPD officer. You wouldn't normally have a lot of standing to challenge your prosecution because, like, I tackled you and waited for the police. Like, maybe you could go after me, I guess. But no, they, they never really spell that out.

They, we do get periodic updates from the National Guard now, like once a week, about how many soldiers are here and where they're from, and they're, they're 20-odd states. It's been really interesting to me, and I don't have a good explanation for this. A couple states have, like, one person, which seems like a, a very small deployment. They are principally, but not exclusively states with Republican governors. Now, I think we're down to 3,600, so it seems like the, the summer deployment is winding down some.

Natalie Orpett: Yeah, I mean, I, I asked that somewhat in jest because I would've been shocked if that had been spelled out in the filings you were looking at, but-

Brad Heath: Yeah, can it, I mean, you know, if they witness something, it doesn't really matter, right? And if it's, I suppose if they help the, you know, if, if, if I'm on the subway platform, right? And the, the transit policeman is yelling like, "Stop that guy. Stop that guy," you know, "He stole her purse," and I stop him I don't have any authority in D.C. I don't think that would matter to the prosecu- so I, I don't, I don't know how much it would matter. Maybe it would matter the most in, like, the, the, the pizza stealing case where, like, they, they detained the person, but they, they basically, like, sit him down until MPD shows up.

Natalie Orpett: Yeah. I mean, the, the questio- the analysis from any individual case is gonna be pretty fact-specific. But one of the things that we've really been finding as we're looking at this legal question is just that transparency is a major problem. There've been sort of conflicting explanations of exactly what the mission is that people are operating under and what the extent of their claimed authorities are, and this is all in court right now, still pending. So, you know, it, it would have been convenient, but as I say, quite surprising if any of this information showed up as facts that would be deployed in the litigation to talk about sort of the overarching lawfulness of, of the deployments and the missions.

Brad Heath: I mean, that, that's an interesting, may- maybe it'll come out in discovery in something, right? Because, you know, they, they do turn over even in these petty cases, like, dozens of hours of body cam video and loads of paper. So it, there could be something floating around. I don't know.

Natalie Orpett: Yeah, I mean, I, I mentioned in another podcast that we did actually that if, if I were a defense lawyer and my client had been detained or arrested by a member of the National Guard, I would have motions relating to unlawful arrest because the, the scope of the National Guard authority to arrest versus detain is somewhat contested, and it will depend all, on all of these factors. And it's, it would be a quite fact-specific analysis, but it will be interesting to see if any of that comes out in discovery and how that might inform these broader threshold questions of legality of the broader deployments and the nature of the mission.

Brad Heath: For sure. I'll, I'll be interested in the answer you find to that.

Natalie Orpett: Yeah. Okay, I want to shift over to the reporting you did because this analysis of the filings was really, really interesting. But I have to say, after my own experience trying to occasionally chat with the National Guard who are patrolling my neighborhood and the area around our offices at Lawfare, they do not seem particularly forthcoming with information.

And there's, there have been a lot of reporters who have had a really hard time just nailing down the facts of who people are, what they're doing, what their understanding is of what they're doing. And so, I'm curious, just as an initial matter, what was the process like of reporting? How did, how did you go about talking to people?

Brad Heath: I, so this was sort of multifaceted, right? Like, part of this was to talk to people in the community and just see, like, what do you think of these soldiers being here? Are they having an impact? I mean, part of what I wanted to do was go to the places where there is actually more crime in D.C. and say, you know, "Are there any soldiers here and do you want them here?" Right? You know, if they, if they're here to nominally make the city safer, would you like them to be in the parts of the city that are less safe? And I did not get a lot of enthusiasm in response to that proposition.

And part of the reporting was to talk to people in government and to talk to the soldiers themselves to see, you know, what are you doing? And, and I have to say, like, the soldiers are not allowed to talk to the press. We did ask for interviews and were denied, but I spent a considerable number of hours out in the heat just kind of chatting with people. They're not hard to find. A lot of them were very receptive to having a conversation. They tell you where they're from. Very pleasant for the most part. You know, one soldier was, I mean, he seemed thrilled to have been handing out water to tourists who had overheated. He was giving people directions. Like, he just seemed to, like, really like what he was doing. And I didn't like wearing a short-sleeve shirt in that weather, and he was wearing body armor. So, I mean, good for him.

I talked to other soldiers who were less enthusiastic, who didn't exactly know when they were gonna be going home, but, you know, any day would have been fine, a- and kind of everything in between. And then also ended up talking a fair amount to, to lawyers and people involved in criminal cases just about, like, what's it like to have soldiers show up in the middle of all this? And, and, and that was pretty interesting, too.

Natalie Orpett: Yeah, I, to go back to the first set of folks that you mentioned, what did people say about why they did or didn't like having the National Guard around for purported crime-fighting purposes?

Brad Heath: I heard a lot of complaints that soldiers have kind of harassed people. You know, some of the, some of the stuff is if you go down to, like, the Navy Yard area, the D.C. does have a teen curfew. The soldiers have been involved in, in policing that somewhat, like, basically not letting teens get on the subway after hours. So, so there's that kind of stuff. But there, there's also, like, the, this sense of this isn't really the right way, this isn't what the community needs to deal with crime. Like, the community needs community policing. It needs people we know. It needs people we trust. It needs people to solve crimes. It does not need, you know, a, a kind of quickly turning over cast of, of armed soldiers walking around. So I, you know, even in the places in the city where I went, where, where crime has been, like, a real issue for years, if not decades, there wasn't a lot of enthusiasm for, "Gosh, I wish these guys would get off the Mall and come over here."

Natalie Orpett: That's interesting. And in terms of your conversations with National Guard members themselves, interesting that you, you heard a range of liking what, you know, one, one guy liking what he was doing, others not so much. Did you have any sense of, or did you have an opportunity to discuss at all why they were there or their understanding of what their mission was, the parameters of what they're doing, not doing, that sort of thing?

Brad Heath: Only enough to kinda confirm the understanding we had from, from other sources. You know, I, for, for the most part, I guess this is probably good, soldiers were, were pretty rule-following, right? The, the rule is don't talk to reporters, I'm a reporter. There you go. But, but they, wnough people were chatty enough that if we, if we had learned something from, from other sources, they could kinda, they weren't there to keep secrets.

Natalie Orpett: I see. And did you ever have a situation where, I mean, sometimes it's visible on folks’ uniform if they were there for the America 250 mission versus the D.C. Safe and Beautiful mission. Did you notice any distinction between those mission folks or, or did that not really come up?

Brad Heath: That didn't really co- I, I mean, I did, I definitely didn't notice it. But I was doing this a lot in the sort of height of the, the 250 stuff. So I, I'm not sure what the balance of people I encountered was anyway.

Natalie Orpett: Yeah, I think it's an interesting, I, I ask only because it seems to me in a number of contexts, there's been sort of a conflation of the mission, of those two missions. America 250 being really crowd control and D.C. Safe and Beautiful being more, at least possibly, crime-related law enforcement activities. And this came up because Governor Whitmer actually had, I believe, called back her National Guard deployment that was supposed to be there only for America 250 to help with crowds, and she had the sense that they were being used for broader purposes than that, sort of conflating the America 250 mission with the D.C. Safe and Beautiful mission. And this again goes to the, the question of sort of transparency and rule of law, whether we have a good sense of who's doing what and under what authorities and scope of mission.

Brad Heath: Yeah, I, that's, that's a good question. And, you know, the, that, like, crowd control America 250 kind of deployment, that's not a particularly unusual one, right? Like, there are National Guard soldiers in D.C. every Fourth of July for the fireworks because somebody has, you know, they close this ridiculous number of roads, and somebody has to man all of those barricades.

Natalie Orpett: The last group, I'm curious if you can say more about the last group of people you mentioned talking to for the reporting, which was people in government. And I'm just wondering among people, you know, if you talked to anyone who was in the Metropolitan Police Department or D.C. local government, you know, how, how they felt about this enormous influx of National Guard and facts like how much more it was costing and how that, you know, could that money have instead gone to pay for additional police officers in D.C. who would be sort of permanent fixtures here with more direct command and control by civilian authorities in D.C. and, and things like that. What, what came up in those conversations?

Brad Heath: Sure. I'll start by saying, like, conversations with D.C., D.C. government generally does not wanna talk about this particularly much. And it was difficult to get people in D.C. government to talk about it at all because they, this is such a complicated relationship for D.C., right? Like, they are, they are under all this federal authority. They have to live with it, and they also have to manage that relationship, like, not from a position of power all the time.

So, you know, but, but the mayor has said a couple times, like, the, that this is not how we should be doing public safety in D.C., right? That, that she, she was fine with having additional federal agents here, right? One of the things the administration did was send hundreds of additional federal agents who basically behaved as local cops especially in the early days of the, the 2025 anti-crime surge. But, like, ICE, she did not want here, and the National Guard she did not want here.

Natalie Orpett: And this was, this is Mayor Bowser you're talking about?

Brad Heath: Yeah. Yeah. But the, the number of people in D.C. government who, like, declined to talk about this at all was, was surprising to me.

Natalie Orpett: That's interesting ‘cause I imagine in, in your other reporting over the years, you've had a lot of instances where D.C. has to navigate this very tricky relationship with the federal government and the limitations on home rule and all of that. So did you, did you find that they were even more reluctant to speak than in other situations like that?

Brad Heath: I, I don't cover D.C. government a lot, but I have found them to be more helpful over the years in terms of providing information and, and just talking about stuff than they were with the, with the National Guard.

Natalie Orpett: Interesting. What about others in, maybe not directly in government, but employees of D.C., for example? Or individual police officers or things like that. Did you get a chance to talk to anyone who's sort of working alongside the National Guard?

Brad Heath: Not as much as I would like to. And, and, and MPD is not really working alongside the National Guard. They're just kind of coming when called. Or one of the, one of the really interesting and still kind of open questions is the extent to which there's coordination between the police and the National Guard. You know, the, the police work hand in glove with the, you know, federal law enforcement who's been surged into D.C. Like, that's the kind of thing they've been doing day in, day out for decades.

With the Guard, it's a lot less clear. I mean, it's less clear even, you know, does D.C. get a say in, "It'd be really helpful if you went out onto this street corner today," or, "It'd be really helpful if you stayed away from here." My sense, it, they've answered a couple of this question, like, in vague terms in a couple community meetings, is that there's not… They don't really have much control over where the soldiers go or what the soldiers do.

Natalie Orpett: And did you get any gauge on how people are feeling about that or if they wish it were otherwise?

Brad Heath: Not really. I mean, I'm sure it wouldn't surprise anyone, I think, if D.C. had more, would be happy to have more control over what's going on within its borders, you know. But I, but I don't really know the answer to that.

Natalie Orpett: And in talking with members of the National Guard themselves, did any of them talk about the relationship with D.C. authorities?

Brad Heath: No, not really. You know, they, they do call in. We, we see that sometimes. They, they have some communication channels that get them in touch with MPD, I think maybe faster than calling. I don't know if they have a radio connection or something else. Sometimes they do just call 9-1-1. But no, they, they didn't really give us any information about that.

Natalie Orpett: Okay. A lot of opacity still.

Brad Heath: Yeah, for sure. I mean, for, for such a big and highly visible thing, there's a lot we don't know about the just kind of mechanics of how it works every day.

Natalie Orpett: Yeah. How do you, how do you think about that? Because, you know, I'm coming to it from a, a little bit in the weeds legal question that is really quite separate from the experience of people living in the district, even myself. There's sort of the academic question and, and how it will manifest in legal challenges in the courts, but there's, there's also really what I think you are focusing on more, which is what the experience is and whether the deployment of the Guard is, is living up to the promise that it would fight crime. I mean, how are you thinking about all of this?

Brad Heath: I thought at the outset this would be a somewhat easier puzzle to crack because, you know, D.C. is a, a relatively transparent local government, and there are 5,000, there were 5,000 soldiers in D.C., like, somebody's gonna know what's going on. So the extent to which we still don't really know, like, who tells you where to go every day, who gives you your marching orders, what exactly is the training regimen that you have to have before you come and are on the streets of D.C., and is it different for different units?

You know, early on, we saw a lot of military police units here, actually. Now, not so mu- It seems to be more of a, a mixed bag that we don't know even all the units that are here. So, I would've thought these would be easier questions to answer.

Natalie Orpett: What exactly is getting in the way of answering it? Is it just because people will not talk in a forthright manner, or are there other routes that you tried to, to sort all this out?

Brad Heath: A little of everything, really. Like, you know, there were a lot of questions that people didn't wanna answer. There were a lot of people, you know, the National Guard didn't really talk to us or answer questions. You know, the, the D.C. government declined to comment when we, when we asked them for interviews. So there's just a lot of, a lot of stuff that remains unanswered.

Natalie Orpett: Yeah. It's, it's really consistent with, with what we've found as well, just the difficulty in nailing down basic facts is, is kind of staggering. I wanna talk about a couple of other things that, that really stood out to me in your piece. And I guess as a big picture matter, you talk a bit about the question of whether this actually reduced crime, and there is the whole theory of deterrence. We've touched on this a little bit, but undercut a bit by the, the fact that most Guard are deployed in wealthier, less crime-ridden areas of the city. But you do note in the piece that crime has gone down in D.C.  Tell me about how you're, how you thought about that dynamic and, and just how you measured the question in your reporting about whether this has an impact on crime.

Brad Heath: Yeah. I, deterrence is one of those things that's really, really tricky to prove empirically, and we didn't really set out to, to prove or disprove it, but in part because there's so many moving pieces here, right? You know, even if you think about the District of Columbia and what the Trump administration is doing here, it's not just 5,000 soldiers on the street. It's hundreds of additional federal agents. It's the U.S. attorney changing their charging practices. Immediately when that happened, there was a pretty notable decrease in public mobility, right? Like, fewer people were taking the, the bike shares and taxis, and there were just less, fewer people on the street making restaurant reservations.

Unpacking all of that is really complicated, but there are a couple things that, that stood out as pretty noteworthy. One is like, yes, crime is down in D.C. in 2026 and in 2025. That was also the case in 2024. You know, the, the murder numbers have been going down a lot. A lot of the other violent crime numbers have been going down a lot. But murder especially, you know, if you look nationally, we are reaching modern lows for homicides in ways that kind of defy easy explanation, right?

So Baltimore, which has not had a sur- a federal surge, and in some sense has had, like, federal resources withdrawn from the city to bring them to D.C., is also experiencing kind of record low homicides and a huge decrease in crime. So how do you, how do you unpack all of that?

And then in addition to that, there's just the, the physical geography of the deployment, right? So we don't know conclusively where all the soldiers in D.C. are. But one of the ways we went about it is to, to look at all of the locations of the, of the incidents that they were involved in that ended up in court. Because sooner or later, if you're spending enough time out trying to deal with crime it stands to reason you will rub up against the legal system, like, at least once.

And, so we, we looked at the census tracts where we could find some evidence that the National Guard was doing something, and those tracts were generally wealthier parts of D.C. They were whiter parts of D.C. They were parts of D.C. that were safer, you know, even before the administration started really focusing on D.C. crime in 2025. And, and in particular, like, those census tracts tracts where, where, where the census tracts where they were not is where 82% of the D.C. murders happen, right? So, a- a- and yet murder's going, crime is going down in the neighborhoods where, where the Guard isn't. So I, I think the deterrence piece is just really tricky.

Natalie Orpett: Yeah, and it sounds like based on the cases that you looked at in Superior Court, the vast majority of those in which the National Guard was involved were, were nonviolent crimes. Is that right?

Brad Heath: Yeah, I, I would say we, we didn't count every offense, in part because the, it gets a little tricky in Superior Court. People get charged with other things. You might have another warrant, too. But there was a lot of nonviolent, kind of petty property crime that they were involved in.

Natalie Orpett: Okay. And I just wanted to clarify one thing you said.

Brad Heath: Yeah.

Natalie Orpett: So overall aggregate crime numbers are going down both in D.C. and nationally, and the larger percentage of crimes that occurred in D.C. in areas where the National Guard was not deployed, for the most part, that is not a reflection numerically of the majority of the decline happening where the Guard was versus because the Guard wasn't in these other areas, crime did not decrease.

Brad Heath: No.

Natalie Orpett: Is that right?

Brad Heath: Yeah, that, that's right. The, the, you know, the Guard is, is not in the parts of the city or not spending much time in the parts of the city where a lot of the, the really serious, especially violent crime problems have happened. And, and those parts of the city are seeing real reductions in violent crime comparable to what you see in the neighborhoods where, where the National Guard is. You know, there, there's not, there's not some clear pattern where, you know, if the Guard is there, crime, crime seems to be down more at least based on the location data that, that we had available to us.

The other thing worth saying, though, is that if you look at just, like, the total number of violent crimes reported to metropolitan police, it's actually higher this year than it was last year. So there, there has been th- this very small couple percentage point increase in total violent crimes in D.C. That's mostly serious assaults. You know, homicide numbers have gone down, so that, that too is sort of a, a, a complicating factor.

Natalie Orpett: Yeah, and is it possible even to disaggregate location of those and map it onto where the National Guard is deployed or not?

Brad Heath: The short answer to that is yes. Like, D.C., D.C. does publish daily its crime data, and you can look at it by neighborhood. And, and we did, you know, we tried to look for neighborhood patterns and, and really didn't see anything strong. But, but there's so many, you know, you can't do off that a, a really rigorous study because there are so many other confounding factors. You know, think about like Park Police used to just be by the Mall, and now they're patrolling all over D.C. and, and engaging in, you know, vehicle pursuits. And they are east of the river. They, you know, the, you know, the feds are in places where, where there's been a lot of crime, and they're, they're doing gun enforcement, and they're doing some drug enforcement. So all that stuff just gets just very complicated to measure.

Natalie Orpett: Yeah, absolutely. I mean, I'm really grateful for the analysis you guys were able to put together to map this out because it strikes me as a really impossible task to even try to tie these things together. And of course, it's important to, to ask for the receipts because this is the whole premise and the whole reason that the, the troops are supposed to be deployed here.

Brad Heath: Well, and then you throw the other, there's another layer that you heap on top of that, which are, are the D.C. crime data any good anyway? You know, the, the, the Trump administration has raised complaints, but the, the D.C. inspector general too has found, like, shortcomings in how Metropolitan Police handles its crime reporting, and they ousted a bunch of commanders and, and, you know, there was a, a- another investigation that found they were under some pressure to try to reduce the serious crime numbers in, in places that have been the targets of local policing initiatives. So, like, are our data any good? It's tricky to know. I mean, the White House uses them, the district uses them, the FBI uses them, so they're, they're what you got.

Natalie Orpett: Yeah. A lot of layers of complexity.

Brad Heath: Yeah. It's a, it is a complex layer cake. For what seemed like a simple story to start out of like, hey, what are these guys doing?

Natalie Orpett: Well, you, you got a lot further in sorting that out than I've seen anywhere else. I wanted to ask you one other question, which was, in your piece you quoted General Randy Manor, who was the second in command of the National Guard Bureau.

Brad Heath: Yeah.

Natalie Orpett: And he said something about how soldiers are ill-prepared for police work. Can you talk a little bit about what that meant, what your observations were with respect to that concept?

Brad Heath: Yeah. His, he made two points when we were talking about the, the, you know, soldiers and police work. One was they just don't have the training that police officers do, right? Police officers spend time in the community. You know, they go through the academy. They have a training officer. There, there's a lot that goes into putting a police officer on the street, even as a, as a rookie. National Guard soldier, not as much. You know, they, they do have training, but it's more combat training. It, it's not, you know, "Go stop shoplifters, go stop fare jumpers." You know, policing is a very difficult job. Day in, day out, police officers are dealing with fellow citizens experiencing, like, the very worst day of their lives. You know, their, their worst behavior, someone else's worst behavior. It is not easy.

The other point was the National Guard, w- when you think about them, you might often think of the National Guard responding to a disaster. You know, they, and, and when your house is flooded, when your neighborhood is on fire, and the National Guard shows up, they are unequivocally there to help you. And his point was, now you have the National Guard on the streets of a U.S. city kind of keeping an eye on you. Now, you know, they, they might be protecting you from crime, but they might also be checking you out to make sure you are not committing any crime. And that, that's a different thing and, and will change how people look at the National Guard in their communities. You know, and, and I think he found that, that idea troubling as well.

Natalie Orpett: Yeah. And did you hear any echoes of that among the National Guard who were willing to talk with you?

Brad Heath: No, not really. You know, I, to the extent people were talking to me, they, they seemed, like, happy to be there to help and, and thinking they were helping.

Natalie Orpett: Interesting. Okay, I wanna wrap up just by asking you, you know, what do you wish that you knew that you weren't able to find out? What are the sort of burning questions that remain in your mind?

Brad Heath: Oh, gosh, I have a long list. Like, like at the end of every story. Well, let me back up for a second and talk about policing, ‘cause there's one, there's one part of this that I find really interesting a-and it goes to the cost of this, right? So there, there is the multi- you know, multi-billion dollar cost. The administration most recently said they, you know, they need close to 1.5 billion dollars to keep soldiers in D.C. through the end of President Trump's second term.

But one of the more interesting charging documents I read was from last year, and the National Guard was at the Capitol South Metro Station, so it, one of the stations closest to the, the Capitol office complex, and someone was stealing hats on the train. He stole a hat from someone, who then tussled with him. When the ca- train came in, the National Guard got on, started to break up the tussle, and the, the guy was charged with assaulting the soldier and reaching for his weapon. You know, we, we've never seen a, in any of these charging documents, a weapon come out. This is as close as we've got.

What was really interesting to me about that document was they, they told us who the soldier was, and he was in a military police unit. He turns out to be a, a, a decorated police officer from Jackson, Mississippi, and you know, Jackson, Mississippi, for years had a homicide problem that was so much worse, like per capita, than D.C.'s. They've had a very hard time with that. And also, they have a few a lot fewer cops than D.C., so s- one of the costs to the deployment was they had to take a, a, you know, an officer out of a, a quite dangerous U.S. city to have them guard the subway.

Those kind of costs are, are much harder to measure. I'd be really interested in, in seeing that, like more granularity in, in who's been here and what are they doing. I remember a colleague, when the president was talking about deploying the National Guard, went down to Louisiana and was talking to a police chief there, who said, "You know, I could really, I wouldn't mind having some National Guard on my street, but then again, if you call up the National Guard, that's gonna be a bunch of my officers because they also are National Guard, you know, soldiers in a military police unit, so I, th- there's a bit of a double-edged sword here." I thought that was a really interesting observation.

But you asked about things I, things I'd like to find out, and like I, I would really like to find out like what the level of coordination is. One of the, one of the things we've heard is putting the National Guard on the streets frees up metropolitan police officers to go do other things. I'm not sure that's true. You know, we, we don't really have evidence that that's true. You, it's not like they've left downtown. So to what extent are they, are they even coordinating at that level? I, I'm really interested in like what are the soldiers doing that doesn't come up against the law enforcement, so as you know, just what's a, what's a day like? You know, we, we, we go see glimpses for a minute or two and then they move on. But like, what do, what is today like?

Natalie Orpett: Yeah, absolutely. A lot of still unanswered questions.

Brad Heath: I, it's, it's surprising. I mean, for, for like so many people in a town full of curious journalists, right? Like, surely we should have nailed this by now.

Natalie Orpett: Yeah, and, and to say nothing of the question of whether it should be okay as a rule of law matter for us to not be able to get these answers.

Brad Heath: Well, you know, that's what FOIA's for and, you know, come, I don't know, 2035 or something like that we'll have lots of partially satisfactory answers.

Natalie Orpett: That seems like a long time to wait.

Brad Heath: So- some places do a very good job, but I, you know, the, to the extent these deal with the Marshal service, right? I, I got an email from them this morning asking if I still wanted the thing I asked for in 2024 or ‘23. You know, it's, it takes a while.

Natalie Orpett: It's not an easy beat you've chosen.

Brad Heath: No, but it's really interesting.

Natalie Orpett: Yeah. Okay. Well, I think that's a great place to leave it. I, I wanna really thank you for this work because I think you were able to really dive into a lot more factually than I've seen anywhere else, and it seems like it took a tremendous amount of work and dedication.

Brad Heath: Well, I appreciate that. That's, that's very nice of you to say. It was fun to do.

Natalie Orpett: That's great. Thank you for that and thank you for joining us.

Brad Heath: Oh, my pleasure.

[Outro]

Natalie Orpett: The Lawfare Podcast is produced by the Lawfare Institute. If you want to support the show and listen ad-free, you can become a Lawfare material supporter at lawfaremedia.org/support. Supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoy the podcast, please rate and review us wherever you listen. It really does help.

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Benjamin Wittes: It is Tuesday, the first day of September, 2026. It is 11:00 AM in Washington and you are watching Lawfare Live: The Trials and Tribulations… of the ballroom. And when I say the ballroom here, I mean what the solicitor general actually called to the Supreme Court of the United States, "A secure state-of-the-art facility that provides for the physical protection of the president and the command, control, and communications capabilities necessary for the president to carry out his constitutional duties when under conventional or even nuclear attack." And I stress that that is a quote from the Justice Department of the United States to the Supreme Court of the United States.

I'm Benjamin Wittes, editor-in-chief of Lawfare, and I'm joined by Lawfare senior editors Molly Roberts and Roger Parloff, both of whom are expert on building drone facilities with party tops to them, five stories deep. We're gonna be doing some deep dives into how the government has described this facility. But we are here today because the Supreme Court has allowed construction to proceed, and along the way, we have a deep division among the justices over the core issue of how to spell the word “aesthetic.”

We also have, on a totally different subject, a whistleblower who's come forward on the Postal Service stuff, so we actually have a weird amount to talk about today. But let us start with the ballroom because, you know, that is what we're here to talk about. Molly give us an overview. What did the Supreme Court do yesterday?

Molly Roberts: Yeah. So, the Supreme Court said that President Trump can keep on building his ballroom. It did that by staying an injunction against the above-ground construction of the ballroom, which was only part of the construction that was going on. The below-ground construction was allowed all the time to go on. The below-ground construction has to do with where there's this presidential bunker. But this sort of nifty trick that the administration had pulled was to say, "Actually, it's all an integrated whole. We need to be able to build the above-ground part, too." And in fact, that's one of the things that the Supreme Court relies on in this 5-4 emergency ruling in the case. And it's 5-4 with the chief justice writing the dissent, which is co-signed by the Democratic-appointed justices.

So, the kind of core issue here is not the lawfulness or likely lawfulness, unlawfulness of the ballroom or of the razing of the East Wing beforehand because the justices in the majority did not want to reach that. Or, I mean, the, the less cynical thing to say would be they found that they had no need to reach that because the plaintiffs here, and the plaintiff was the National Trust for Historic Preservation through one of its members, Allison Hoagland, didn't have standing to challenge the ballroom.

And then what the majority spent the rest of their time on was the irreparable harm component of granting a preliminary injunction. And that's where they sort of bow quite low in national security deference to the administration and again, let the administration get away with having said initially this bunker below ground and what's on top are separate, and now say it's a highly integrated unit full of protective missile-resistant steel columns, roofs, and beams, drone-proof ceilings and roofs, military-grade venting, and bullet, ballistic, and blast-proof glass. So-

Benjamin Wittes: To wit.

Molly Roberts: To wit, yes.

Benjamin Wittes: They actually literally wrote the sentence, "The Project," project with a capital P, "includes bomb shelters, state-of-the-art hospital and medical facilities, protective partitioning between all areas of the building, top-secret military structures and equipment, military-grade venting, a single integrated air conditioning and heating system, sniper's nests, a drone port on top elevated by the structure of the ballroom, all to protect the White House and surrounding region from aerial attacks, one of the nation's largest emerging threats." That's a quote from the application to the Supreme Court.

Molly Roberts: Yes, we'd be remiss not to mention that the columns on it will be made from the “highest grade Indiana limestone, which has been shipped to Italy and is being carved by some of the greatest artists anywhere in the world.” This is in a filing. Apparently, this is relevant to the case.

Benjamin Wittes: Okay. But none of this decision actually turns on any of that, right? The, the decision turns on the question of aesthetic standing.

Molly Roberts: Yeah, so that's, that's what the majority devotes most of its opinion to. It does also talk about irreparable harm. So those are the, which, which has to do with this being supposedly a structure that's necessary for national security, and they say the government has presented declarations from, and then they list a whole bunch of officials saying that there are harms that will arise from enjoining this single coherent project and that “the height and mass of the above-ground ballroom are crucial to shield the planned underground military installation from kinetic impacts.”

So part of it is on that, but yes, most of it is on aesthetic standing and the idea that the plaintiffs are unlikely to succeed on the Article 3 standing issue, and so the courts shouldn't be hearing this and intervening in this.

Benjamin Wittes: But I, I'm confused. Why does the government's rationale for any of it matter at all if the plaintiff doesn't have standing? Right? I mean, if, if, if you're just a, a, a, a nasty woman walking a dog and you don't like this building and that's your claim to standing, as the president claims of the plaintiff, falsely, by the way, but what does it matter if the government has a fully integrated complex unit that is vital for national security of the United States or merely just a schlocky, kaputched ballroom. You don't have standing, right? Why, why, why does it matter, why does any of this argument matter if the thing boils down to aesthetic standing?

Molly Roberts: Yeah, I think it's a good question. They have the section on the aesthetic standing, then they move to another section, and they just say that the government has also established that it will likely suffer irreparable harm and that the balance of equities tips in its favor. So they're just, they're just ticking through the kind of “even if we were wrong about the standing thing” part of the argument.

But their argument about the irreparable harm is pretty intertwined in the standing argument because they're saying that the district court has exceeded its Article 3 authority to enjoin the activities of a coordinate branch of government, and then they're saying, "And in fact, here the executive has, you know, we're, we're granting particular deference, or we should grant particular deference, because this is a national security issue."

And I think in some standing cases in, in the past, and they don't cite them, but I think the Supreme Court has sort of raised the possibility, or at least in some concurrence by Justice Kennedy in a th- case I think called Clapper, the possibility is raised that perhaps in matters of standing, there should be afforded more deference to the executive when it's a national security case.

Benjamin Wittes: Interesting Roger, how do you spell aesthetic?

Roger Parloff: I think the preferred spelling is with an “a” at the beginning. That's apparently the, the British and even the preferred American. But no “a” is permissible apparently in, in American, and I think it's actually preferred by the skincare professionals of America, like the schools of estheti-

Benjamin Wittes: Did they file an amicus brief?

Roger Parloff: No, but the, the schools of aesthetology, I think you'll find it's usually spelled with an “e”. That might be a mistake, but it's it's I think it's the preferred for those professionals, and also for Justice Scalia.

Benjamin Wittes: And also for Justice Scalia. So okay, there seems to be a division on the Supreme Court about how to spell “aesthetic” Nobody is criticizing each other about it. Nobody, they're not, like, dissenting "I join the majority's opinion, except that I would spell aesthetic with an ‘a.’" But they-

Roger Parloff: Respectfully.

Benjamin Wittes: Respectfully right. But they do seem to, like, they don't seem to have a unified style on this. Who's on what side of the issue?

Roger Parloff: Molly, did you wanna take that one?

Molly Roberts: No, you seem, like, very read in on this. If, if- I, I was, I was going to say that it wasn't clear to me that there was a division on the current court, but that it was fairly clear to me that there was a division on past courts where precedent on aesthetic standing was established, and that Justice Scalia really likes the one “e” version. And I was going back to some cases in the 2000s where if he writes it, it's with an “e,” but, you know, then in between two Scalia opinions, you have a Ginsburg opinion, and she writes it “ae.”

And so often when it appears in the cases now with an “e,” it's when Scalia's being quoted. Regardless of who's writing the opinion-

Roger Parloff: I think so.

Molly Roberts: Thet don't then overrule Scalia's spelling. They let him have his spelling. They just do it in quotation marks.

Benjamin Wittes: Interesting. Okay, I'm not sure I fully understood that, that the, the, the dispute is between all justices and Justice Scalia, not between, among the current justices, but we do still quote Scalia, so it shows up. That's interesting. Okay.

Molly Roberts: I would have to do a more comprehensive analysis to determine whether there are any justices who agree with Scalia on this point, but from what I could tell, he was the preeminent champion of the spelling of aesthetic with one “e,” or sorry, with, well, no “a.”

Benjamin Wittes: All right. So is aesthetic standing dead, or is this just the- I mean, one, one thing you could say in defense of, of this approach by the majority is that aesthetic standing is actually a very aggressive standing theory and that, you know, the fact that you don't like something is different from injury in fact. And if you're, you know, if you don't like government policy, you don't get to choose, you know, to sue on the basis that you don't think your tax dollars should be spent that way. So if you don't like government architecture, why do you have any more standing than if you don't like government policy, right?

But that is not the Supreme Court's historical doctrine. And so, should we un- well, first of all, what is that doctrine historically? And secondly, to the extent that they are now doing something else, should we interpret that as conservative reversion to the mean? That is, this is kind of what you would expect the Sam Alitos and conservatives to believe? Or should we understand this as simple hypocrisy that, you know, if the shoe was on the other foot, they would find aesthetic standing was adequate here? How do you understand what they're doing here?

Molly Roberts: So I guess there are kind of two parts to that question, and one of them just is what's the doctrine here? And I think the best way to answer that is the Supreme Court has a lot of precedent on aesthetic standing, but it regards environmental cases.

And so these environmental cases don't have to do, though, with harm to the environment. You know, there was actually sort of a dispute when all this came up originally where Justice Douglas wrote this dissent saying that trees should have standing, rivers should have standing. But that's not what the court thought. They said it's about the plaintiff, it's about the plaintiff's injury specific to his or her human self, and kind of as they moved on with this, they said that environment, harm to the environment doesn't even matter so long as there's harm to a plaintiff for whom an area, an affected area's value will be lessened by a challenged activity. But that could be looking at an elephant or swimming in a river. So sort of exactly what it meant, how much you had to really use the thing wasn't clear. It seemed that a lot of things qualified as use.

So there's, there's loads of precedent on that. Even as the Supreme Court, you could argue, has tightened its view of standing when it comes to is an injury sufficiently concrete and particularized, they never came back and said, "Well, aesthetic injuries aren't sufficiently complete and particularized."

But they also, again, these are environmental cases. What they haven't done was ruled on cases of aesthetic harms in other contexts, like historical or cultural contexts. Lower courts, including the D.C. Circuit, had done that. They had read the environmental standing precedent to extend to historic battlefields or, say, a Native American tribal site. They had said it's pretty clear, or, you know, certainly no distinction had been established.

So, you could imagine the Supreme Court here establishing a distinction and saying a reason that the historic sites are different. But they don't really. Or you could imagine them saying something like, “Well this injury isn't concrete or particularized” for a specific reason. Instead, they just sort of say, "Because I said so." And they say, "Well, you know, this is different because it's just mere offense." And you say, "Why is it mere offense?" And they say, "It's not concrete and particularized." And you say, "Why is it not concrete and particularized?" And they say, "Well, it's just because it's mere offense."

So where does that leave you? Which was your second question. I'm not totally sure. One place it could leave you, the most dramatic place it could leave you, is aesthetic standing is dead or going to be dead, and that includes the environmental cases. N- doesn't look like that's what's happening because they cite the environmental cases favorably.

The next place it could leave you is aesthetic standing has been cabined to environmental cases. In that case, they haven't explained why, so it would be sort of difficult going forward to figure out, you know, is it just environmental? Is there any other interest? What is the distinction? They haven't provided one. Maybe they do that down the line.

And then the third would be nothing has really changed. They didn't wanna reach the merits, so they came up with an excuse not to reach the merits, and they'll call it offense when they wanna call it offense, and they'll call it aesthetic harm when they wanna call it aesthetic harm and reach the merits.

And I think it's just really hard to say. It's definitely true that there is and has been a tension in standing doctrine, a tension with the aesthetic standing generally where it seems like a lot of this is just distaste and disagreement, and it hasn't been clear why. And the court has been prodded in cases like the abortion case, the FDA versus Alliance for Hippocratic Medicine, to confront why the offense there wasn't aesthetic standing, and they kind of dodged it. So it seems like there's at least a lack of interest in getting rid of these environmental cases, but whether there's going to be interest in saying only environmental cases, I don't know. I-- They'll have to explain why.

The Chief Justice Roberts in the dissent is not convinced. You know, he says, "What is the difference between I want to look at a crocodile and I want to look at the White House as long as you have a concrete and particularized reason that that hurts you?" Which he argues that Allison Hoagland does. The majority doesn't spend much time arguing why she doesn't, and so then, you know, he asks the question, "If a standalone concrete and particularized aesthetic injury can be recast as mere offense, why are environmental plaintiffs' aesthetic injuries saved from being classed as mere distaste for the actions of government or private industry?" That's the key question.

Benjamin Wittes: Roger, the pattern of Roberts dissenting with the three Democratic appointees is not a typical one. Usually, when Roberts flips, somebody else flips with him, usually Amy Coney Barrett or sometimes Brett Kavanaugh, but you don't usually see the chief in dissent. How do you understand this? Is it, is it that he's just what are, like, more offended by, you know, bulldozing the White House than the others are? Is he, is this a doctrinal dis- difference that we shouldn't really look beyond the words on the page about what's going on in the conservative, among the conservative judge- justices about? How do you understand this divide?

Roger Parloff: Well, course, I'm not an expert on Roberts or the Supreme Court. I, I mean, I, I, I observe, I, I read but I but I will do the best I can.

Benjamin Wittes: Nobody is. He's sphinx-like. I mean, I've known him for 35 years, 30 years, and I, like, and I'm asking this question naively.

Roger Parloff: Okay. I, I think part of it, you're right. I think he was more offended by the destruction of the East Wing. I don't think his doctrinal view is that different from the other conservatives, and I don't think that the position of the conservatives in this case is that shocking either. It was not a clear, strong standing case. You know, the, the woman did not, even though she was an expert and a, a, a architectural historian, she did not pass by, you know, she didn't live very near. She passed by maybe once a month, and it would offend her.

So what Roberts tries to do is two things. First of all, I think he almost looks at it, he never says this explicitly, but he seems to see that there's a sliding scale here, that he begins with the fact that this is clearly illegal. And remember, none of the nine justices here say this is legal. Y- and, I, I should say probably illegal, likely illegal because of the postural, the procedural posture a preliminary injunction below. But he's very cutting about the arguments for the legality of this. I mean, he's, it's very back of the hand. In fact, it's very cathartic to read him on the right side again, you know, and, and really dismiss it.

Benjamin Wittes: And for those who don't, John Roberts is an extremely skilled writer in a way that on this court, I think only Elena Kagan is in his class just as a prose stylist. And when he, when he gives something the back of the hand, it stings.

Roger Parloff: Yeah.

Benjamin Wittes: He, he's j- he's just an excellent constructor of sentences.

Roger Parloff: Yeah. In fact, if you want one he's saying, you know, he begins, "That construction is likely unlawful." Very short sentences. He says "Congress has explicitly prohibited the construction of any building or structure on any reservation park or public grounds." One of the arguments was, that Trump gave, was that the, there, you know, Congress had appropriated 2.475 million for maintenance. And he says, "The appropriation of a couple million dollars for ordinary executive residence maintenance and repairs likely does not authorize the president to use hundreds of millions of dollars in private donations to tear down the East Wing and construct a ballroom in its stead." You know, it, it's,

Molly Roberts: Yeah.

Roger Parloff: It's really, I-

Molly Roberts: I, the other authority is very good, too. I just wanna read the other one. The way he dismantles that is very good, too, which the other provision that they call on is one that tasks the National Park Service with “managing national park land in a manner that conserves the historic objects on that land This is likely not express authorization to raise the East Wing and replace it with a ballroom.”

Roger Parloff: Yeah. The, the other thing that he does, and it's very like him too, 'cause he's a, a appellate, he was the ultimate appellate advocate of, of his day. And, you know, very often the appellate advocates are called upon to articulate a limiting principle. You know, the judge, judge how, and here the, the majority is saying, "Look, if we let this woman sue," I mean, it's really the Na- National Trust, but National Trust for Historic Preservation. But it's one member has filed a, a declaration that's the basis for standing. And if we let this woman sue, how, how can we prevent anyone from suing for simple annoyance or disagreement aesthetic?

And so he's very good with constructing a limiting principle, and here for him, it's the uniqueness of the White House, its historical i- importance. He calls it “the people's house.” He quotes from Theodore Roosevelt talking about the W- the White House and its simplicity. And then the woman also is this architectural historian who's basically devoted her life, an academic, has written books on this subject. So he tries to construct a limiting pr- principle. It doesn't quite carry the day, but it's, it's, it's sort of neat to watch him doing his thing.

And that's, that's where he's, I think he's coming from. But I, I do think why does he split away? I- i- it sounded like he really was offended by the destruction. And of course, looking ahead, it's not just, it's the destruction of Washington, D.C. if there's no way to stop this guy. 'Cause, you know, next, how are we gonna stop this triumphal arch at this point? Who's gonna have standing? So i- i- it and, and the Garden of Heroes and, and God knows what else.

Benjamin Wittes: Yeah, so let's talk about that. So under this ruling, who does have standing? I was trying to make a list of people who could have standing under this, and it seemed, I could come up with two yesterday. One is a contractor who was denied a s- denied the ability to bid in an open process on building the bunker or building the ballroom.

The second was if you build a really big ballroom, it's gonna cast shade on somebody. And so maybe if your window never sees the sun 'cause of a big ballroom now, although it's far enough from anything else that I think there may, that may be a case of a null set. But do either of you have thoughts on who the plaintiff is who does not have a problem getting standing here?

Molly Roberts: I don't think it's easy. What you're doing with the shade thing is creating an environmental injury because presumably no aesthetic injury that isn't environmental qualifies, and I think that that's kind of the right way to read it. The contractor thing makes sense to me. Some people say Congress would have standing. I don't know enough about that, but I believe it's at the very least in dispute.

Benjamin Wittes: Yeah, Congress never has standing.

Molly Roberts: Right.

Benjamin Wittes: It’s always, it's always hypothesized, but I can't think of, I, I mean, Congress has the ability to prevent him from spending money, but that's in its l- in its appropriations role. As a litigant, it's, that, that's not gonna be successful.

Roger Parloff: I don't think the contractor necessarily does because he's not challenging here the bidding process. They're trying to challenge the fact that Congress wasn't consulted. So, and then, like you say, I don't think anyone lives close enough to be in, in, in shade from it or constantly exposed to it.

I do think that the Congress i- if, if a whole chamber, if the whole House, you know, changes hands, I do think it's possible that the House would have standing or, or the Senate chamber if that if that's how it, but like you say, that's very, that's a very murky area, and I'm not an expert. Again it's a, it's pretty good bet I'm not an expert, whatever the area is. But, I'm a journalist. But anyway, th- that's my that's my impression.

Benjamin Wittes: All right. Dissenting from Roger's disclaimer of expertise. Let us turn briefly before we go to a completely different subject. Let's turn briefly to the Triumphal Arch 'cause the Triumphal Arch, it seems to me it's gonna be even harder than this 'cause you're not destroying anything, right? I mean, you don't have the, well-

Roger Parloff: Oh, you're blocking views.

Benjamin Wittes: I guess. Right.

Roger Parloff: You're, you're blocking views in both directions. Importantly, you might be blocking pathways to Reagan National Airport. That might be the basis of, it's not currently a basis, but somebody, you know,

Benjamin Wittes: It's true, although it's hard to imagine that any airline is going to have the, the gumption to bring that suit.

Roger Parloff: There might be helicopter, you know, private users. I don't know.

Molly Roberts: But it's veterans groups now who have a problem with it? For, for that, it seems like it would run into exactly the same issue. And, you know, I could have easily imagined the D.C. Circuit, if this hadn't happened at the Supreme Court, saying that that was quite similar to, say, the tribal interests in not disturbing these sacred stones or, you know, the hypothetical that Judge Millett brought up in the hearing about the Statue of Liberty and someone whose ancestors came to Ellis Island and tearing that down. But I, I just don't see how after this you draw the distinction between-

Benjamin Wittes: What about the family of Abraham Lincoln? You know, this would loom over the Lincoln Memorial and interrupt the sight line between the Lincoln Memorial and the Robert E. Lee house, which is, of course, probably the most symbolic spot in Washington, D.C., where Lincoln's back is to Lee across the bodies of the dead at Arlington Cemetery, over the border of the Union and the Confederacy, and you're going to build a giant arch. And I could see the argument that, "Hey, I am the great, great-grandnephew of this man, and Congress built a, a, a, a, a monument to him, and that was done by law, and this does violence to the memory that Congress created f- of my ancestor illegally.” It, that seems to me to be a little bit more than aesthetic standing.

Molly Roberts: Well, I guess my issue with that is I agree that that seems more particularized than what Alison Hoagland put forth in this case. But the Supreme Court doesn't make any effort to explain actually why hers isn't particularized enough. It doesn't say something like, "Oh yeah, she says she's an architectural history professor, but really she's just walking her dog by a few times, and when she does those dog walks, it doesn't really have to do with architectural history." And, you know, Naomi, Na- Naomi Rao, Judge Rao went closer in the D.C. Circuit to saying, "This is generalized. She's not a special person." But the Supreme Court didn't really mess with that much.

So if they were actually drawing these distinctions about concreteness and particularization, I would say, sure, that's a better argument. But they didn't do it. They just declared it a fence and essentially said that that's different from environmental sites, and this is a fence. So is there room for them to say in the case you're presenting, "This isn't just a fence, this is aesthetic standing"? I mean, I guess, but that kind of just gets back to the same question we were at the start, which was, has the doctrine really changed here, or are they just using this 'cause they don't like this case?

Benjamin Wittes: Okay, so let me pose one other possible standing argument that could affect the Triumphal Arch but not the White House. So the White House is a compound that you can't access, and therefore you can't engage in civil disobedience. But it seems to me the Triumphal Arch is different. You can walk right up to that site.

And so somebody who did, say, a creative protest and got arrested, maybe for peeling paint off the Triumphal Arch or for, I don't know, projecting no Triumphal Arch on the arch got arrested and would have an argument in defense in the, in against whatever misdemeanor he or she was charged with, or in the case of peeling paint, of course, you'd be charged with a felony, a 20-year felony. You might have the argument, "Hey, this con- the entire construction is illegal, and therefore I am peeling paint that wasn't lawfully there to begin with." So, this now proceeds not in a civil lawsuit, but in a motion to dismiss. What do you think?

Molly Roberts: Well, that one's actually different.

Benjamin Wittes: It's genuinely different. You can't do it with the, with the East Wing because of course, the East Wing you can't go peel the paint off of. But I think you will be able to go up to the Triumphal Arch and, you know, scratch into it, you know, "Wittes was here" or something, and then when you get accused of vandalism, you say, "Wait a minute, I'm just writing on a wall you weren't allowed to build at all."

Roger Parloff: I wouldn't wanna be the defense lawyer there.

Molly Roberts: I was gonna say, I'm not gonna try it.

Roger Parloff: I also I think where, where most people are trying to prevent this thing from being constructed rather than allowing it to be constructed and then, and then writing graffiti on it.

Benjamin Wittes: And then defacing it.

Roger Parloff: Yeah.

Molly Roberts: Well, 'cause yeah, I guess the relief there is your case gets dismissed, but that isn't, you know, we still have the giant Triumphal Arch there, so you haven't accomplished anything other than pointing out that it was illegal.

Roger Parloff: I do think your, you know, a member of the Lincoln family would be distinguishing and, and would be narrow and be particularized. I also think we'll get, you could get cases of the families of war heroes who are going to Arlington every, every Sunday-

Benjamin Wittes: Right.

Roger Parloff: Saying, a- a- a- and it's still a big hurdle, this but I think you could get some really wrenching stories that might push over the finish line.

Benjamin Wittes: It would be really cool if you could have a caption on this
“Lincoln v. Trump” rather than National Park for Historic Preservation v. National Park Service. I, I think Lincoln v. Trump-

Molly Roberts: Well, if Ju- if Justice Douglas had had his way, it would be Lincoln Memorial v. Trump.

Benjamin Wittes: Yeah, exactly.

Roger Parloff: There is a distinction here w- with the Kennedy Center. The, the, the plaintiff, Representative Beatty, is a trustee. It's, she's a, I forget the but by statute, certain people are, are trustees, and so she has a different type of standing, so I'm not worried about the Kennedy Center. But these other places I don't know where we are now.

Benjamin Wittes: All right. Before we wrap, Molly, let's talk a little bit about a completely different issue, which is the United States Postal Service and a whistleblower report that was released this morning by Senator Blumenthal on one of your other areas of, I would say eccentric, except that they're turning it they, with remarkable consistency, they turn into matters of national controversy, which is the use of the Postal Service to try to rein in the use of mail ballots. So, give people a little bit of a reminder of what it is we're talking about here and what does the whistleblower allege?

Molly Roberts: Sure. So, there's an ongoing legal battle over an executive order that President Trump issued this spring that sought effectively to curtail mail-in voting by demanding that states submit lists of the people to whom they intend to transmit mail-in ballots to the Postal Service, and then that the Postal Service only transmit ballots to people on those lists. So that's effectively what the USPS component of the order did.

It was enjoined, then the Supreme Court vacated the injunction, or I suppose it stayed it. Then the injunction came back effectively because the Supreme Court did that on the basis of the matter not being ripe, but then the Postal Service published its final rule. In fact, the Postal Service had already published its final rule when the Supreme Court did that opinion, but didn't seem to matter.

So, where we are right now is there's a new injunction in place. It's going to get litigated later this week in Boston, where Judge Indira Talwani is. That will likely end up with the First Circuit, and that will likely end up with the Supreme Court, and the Supreme Court will, one imagines, have to acknowledge that it's ripe now and address the merits. But in the meantime, the Postal Service, again, had issued this final rule and has been developing this portal that is going to enable the Postal Service to check whether the state's actual mailings match the lists that they're mandated to submit. So that's kind of where we are.

There was this weirdness of the portal supposed to presumably come up soon because this is happening now. It's within the next few days, states are going to start mailing out these mail-in ballots. The Postal Service is claiming we're gonna have this portal. The portal's nowhere to be found. The Postal Service is unable to tell plaintiffs in at least one of the cases when the portal will finally appear.

So what this whistleblower has revealed is that the portal has been under-

Benjamin Wittes: And, and just, and just to be clear, what does it mean for the Postal Service to have a portal? Is it like a web portal? Is it a portal that all the mail has to go through and emerge in a different dimension?

Molly Roberts: Yeah, Doctor Strange-style portal. I think that-

Benjamin Wittes: Yeah, I mean, like, what does it mean when the Postal Service creates a portal?

Molly Roberts: It's a very good question. It is a web portal. Exactly how states are going to use it remains pretty unclear, but it is an, it is an IT system portal, effectively. And what would happen was state election officials would enter information into the portal for each of their registered voters. Then they would receive a mail-in ballot, and then they would need, it's so technically complicated, but then they would need to upload a manifest into a parallel system for each batch of ballots that they want to be mailed, and then you would sort of check those against each other.

And so, what this whistleblower is alleging is two main things. One, the development of this portal has been sloppy, haphazard, a quote-unquote "shit show." And that is particularly concerning because this portal or the verification system that the Postal Service is going to use when it says, "Hey, does what a state's actually mailing match the list it submitted?" Is going to have a 0% tolerated failure rate, such that if a state submits a whole batch of ballots and they run it through and they say, "Oh, one of these doesn't match," the whole batch will be rejected and sent back to the state to correct.

And they're saying, considering, that would be a problem even if this were a pretty smoothly functioning system, considering it's been so slapdash, haphazard, that's even more of a problem. There are likely to be errors in the verification. So that would be the kind of first bucket of what they're alleging, and I would say that people were already worried about batches being rejected, and the failure rate is what really sticks out here as new information.

Then the second main thing that they're alleging, that this whistleblower is alleging, is that the Postal Service was violating the court order in continuing to develop this portal when the implementation of the president's executive order had been enjoined. And I think it's not as clear-cut as it might seem initially. I think that there are kind of ways that they can argue that, "Oh, well, you know, we want to have this eventually. We might use it in a future election." It's certainly originally the, the order had only been enjoined as regarded the midterm elections and not for future elections. So, they could argue that that's what they were developing it for. I don't think it's that, that clear-cut, like from a kind of legal point of view.

But the spirit of the thing and the fact that they stopped, and this is revealed in the whistleblower's complaint too, they stopped developing the portal because of the court order for a while, and then they said, "Oh, no, no, never mind. Gotta start up again." And it, it's fairly clear that that was because there was pressure to have this thing ready to go by September 1st for the midterms.

So, you know, where does that leave us? I think it's a good question. I think it's gonna be relevant to the litigation because I think that it shows that the order as it will be implemented and that, that the implementation of the rule, you know, the Postal Service had said, "Ah, well, the way we're implementing this isn't exactly what the order said and may be more permissible." I think it, it makes it even clearer that it should be impermissible as implemented because it seems fairly obvious that there are gonna be these false positives, and that even if a positive isn't false, lots of other ballots are gonna be rejected, and so, you know, these people ability to vote is going to be curtailed. So I think that that'll be pretty important going forward.

Benjamin Wittes: The state of it right now is that it is all before Judge Talwani, who will presumably be at least inquisitive about whether her order is being violated. Is that-

Molly Roberts: Yeah.

Benjamin Wittes: Where we are?

Molly Roberts: Yeah, I think so. I think so. You know, again, when they issued this final rule at 9:00 p.m. on a Friday, before the Supreme Court had said that the injunction wouldn't stand, you could've argued that they weren't complying with her court order by doing that already. And they had filed for another injunction because of that, and it's all developed in sort of a different way, and there wasn't, you know, a motion to enforce, a motion to compel enforcement. But yes, I think so, and I think, again, that the facts of this are relevant not only as to whether they failed to comply with her order, but also as to the legality of the implementation of the order.

Benjamin Wittes: All right. Folks, we are going to leave it there. We will be back if there is any developing news related to the ballroom, the Triumphal Arch, Postal Service.

[Outro]

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[Intro]

Natan Sachs: If it were Bennett and not Eisenkot, you may see a much more hardline approach on some of the aspects in Gaza, for example, and less of a willingness, especially in the West Bank, to entertain pressure from abroad.

Daniel Byman: It's the Lawfare Podcast. I'm Dan Byman, the foreign policy editor of Lawfare, and I'm here with Natan Sachs, a senior fellow at the Middle East Institute.

Natan Sachs: So if you think of three blocks in a sense, the Netanyahu block, the Eisenkot block, and then the Arab party block, the bigger the Arab party block is, the smaller the other two would be by simple math. And so in a sense, if they were tiny, both other blocks grow. And since Eisenkot's block is slightly bigger than, or is actually bigger than Netanyahu's block in the polls, you'd expect him to then cross the 61 threshold.

Daniel Byman: Today, we're talking about Israel's coming elections. Israel's election is scheduled for October 27th, and it is the first national election in Israel since the October 7th, 2023 terrorist attacks.

Mmain Podcast]

This election is, at least if current polls are accurate, quite close with a lot of competing parties. Let's start with just a very basic question. What is this election about? Is it a referendum on Prime Minister Netanyahu? Is it about October 7th and its legacy? What are voters thinking about as they go to the polls?

Natan Sachs: Yeah, so we've, as you said, we've done a few podcasts on Lawfare over the years, including on Israeli elections. So I'm trying to think what has changed since the last few elections that we've covered on Lawfare even. And you've done a lot of great work also besides my participations.

In some ways, same old. So this is still a referendum around Netanyahu. And I say that because when we talk about the blocs, these are not right and left as Israelis usually define right and left. Right and left in Israel are defined mostly around the conflict with the Arab states, with the Palestinians, especially with the Palestinians. And that is simply not the dividing line today in the blocs that everyone is counting and waiting eagerly to see who wins on October 27th.

These blocs are fundamentally pro-Netanyahu and anti-Netanyahu. It's not just personally about him. It's about the whole package that he represents. And I'll talk about that in a second. But in some ways, he's defining the fissure here. So it's not right and left. It's certainly not economic right and left where there are differences that cross both blocs that really almost don't track the blocs. So it's Netanyahu.

But Netanyahu encapsulates a lot. Netanyahu has been Israel's longest prime minister by far now. He passed David Ben-Gurion several years ago. And he has been a dominant force in Israeli politics certainly since coming back to power in 2009, but really all the way back to 1996 when he was first elected. But he's changed over the years. And so the last I'd say seven years, since 2019, Netanyahu has included in it a dramatic destabilization of what were Israeli norms and institutions. His supporters would, of course, say that was justified and, and it was a needed shakeup. His detractors would say that especially since 2022, but already before that, this has been a reckless assault on the balance of power between institutions in Israel, even before October 7th. What he was calling the judicial reform, a dramatic overhaul of checks and balances in Israel That can sound better in English than they actually are because they are working within a system that is very different from the American one. And since October 7th, it's about October 7th and his response to that. So you asked, is it about all of these things? It's all of the above, but encapsulated in Netanyahu.

One last point on this. Since October 7th, there is both unanimity in Israel and consensus around the need to fight, the need to respond to Hamas, the need to incur into Gaza, but also fundamental differences on how that was conducted, and especially the length of the breadth of this war, the relentless three years of essentially nonstop war. I was just hearing someone comment in a completely different context, and they were saying, "You know, it was just before, just as the war started, I was called into reserve duty." And then they said, "I, I don't actually remember what round it was." And this is it. People talk about Iran one, Iran two. What round in Gaza with reservists doing hundreds of days? Not to mention, of course, the devastation around Israel and especially in Gaza.

So this is all of the above, but very much a referendum on that. And that makes these elections, as the cliché would go, and this time it is true, the most consequential elections probably in Israel's history, certainly in many decades, and that is felt not, it's not just a theoretical point. It's very much felt by Israeli voters who are, who are very much attuned to this election.

Daniel Byman: Let's pick up on that and talk about the consequences. I realize it's hard to predict, but let's say Gadi Eisenkot takes power, or Naftali Bennett, some of the main rivals. What would change on Gaza? What would change on Iran? What would change in other important issues? You know, so it's clearly consequential, but what might be we expect to be different if there is a leadership change?

Natan Sachs: So this is a very important question, and I think the answer is a decidedly mixed one, which is that it's a lot less than some people hope and a lot more than some people claim. It's a lot less than people who hope that simply Netanyahu leaving will be a wholesale change in everything Israel has done in the last few years, with many people, of course, not liking it. Israel is deeply traumatized from October 7th, and not just in a way, not just in the sense of anger or s- sense of vengeance, but, but a very different understanding of what fundamental security for Israeli civilians would, would necessitate.

And that is not about to change. That's not about Netanyahu. It's much, much broader than him. An impatience with containing threats is prevalent in Israel today and is very widely discussed. The idea of containment, “containment” itself has become a dirty word as almost the, the sort of fundamental axiomatic lesson of October 7th And this permeates way, way beyond Netanyahu and his coalition. So that's not gonna change. And we don't see in the opposition much appetite at all for ideas of a Palestinian state or two-state solution, very far from that in most of the opposition, excluding the Democrats on the left and perhaps privately quite a few people on the center. But there are very central forces in the opposition. You mentioned Naftali Bennett, Avigdor Lieberman. Some of the figures in Gadi Eisenkot's party w- still to, still to emerge, the party's not yet clear would be very much against it in real time. So we're very far from that.

However, a change from Netanyahu to Eisenkot would be, I think, a profound change nonetheless. It would be a profound change first in this attitude of endless open war, a “seven-front war,” as Netanyahu has deemed it, and many Israelis understand it to be. A seven-front war with really one core, which is Tehran. So if we look at all the fronts where Israel has been fighting, be it of course in Gaza and in Lebanon, but also militia in Syria previously, now still in Iraq, the Houthis, Iranian activity in the West Bank, and of course Iran itself, they're all actually part of the Iranian ring of fire. It's not been a random firing in all directions. We have not seen fighting on Israel's probably two most important borders, the most consequential one, the border with Egypt, and the longest one, the one with Jordan. There has been no fighting with Egypt and Jordan on the Israeli side, because Iran is not present there. So this very, very broad war against an Iran kind of backed ring as, as the Israelis understand it, but an endless one and a deep change in the Israeli doctrine of security. The security doctrine, which has always favored short wars and has changed dramatically under Netanyahu.

This, I think, would be very different under Eisenkot. Eisenkot is someone who was, of course, chief of staff of the military and was not hesitant at all to use force and overwhelming force in some cases, devastating force, but was also usually very cautious about its use. He's known, and I think with very good reason, as very level-headed. He's a cool kind of creature, very smart. His party is known as “straight,” but it's really honest is what it means. “Honest!” with an exclamation mark, yashar. And that's kind of the image he's portraying, but it, one that, one that resonates with his character, which is calm, stubborn, honest, sort of professional military, and also recognizing the limits of the use of force.

So I'd expect a very different approach in that, in the use of force, the number of fronts Israel wants to open, and therefore, the willingness to move towards diplomatic, not resolution of conflicts, but diplomatic arrangements that would allow de-escalation, allow rebuilding, and that would include Gaza. I think Israel would be probably much more willing to work with the Trump Board of Peace Mladenov effort in an earnest way, not in an alternative vision that many people perhaps hope for abroad. In that context, they would be much more forthcoming, and perhaps in others, perhaps in Syria and Lebanon, and in winding down the war in Iran. But not because they have a fundamentally different view of the threat from Iran or would be less willing to use force if they thought it was absolutely necessary, but less, a much less, much less liberal use of force, I would expect.

That's very much sort of stemming from Eisenkot. There are actually big differences between Eisenkot and Bennett and Lieberman in this regard, especially Bennett, I think, who is a much more, he's very pragmatic in some senses. He's very, very right wing on, in the Palestinian issue, but, so his goals are very hard line. But in terms of what he would do and how he would deal with the world, he likes to portray himself as pragmatic, and he is actually. But he is also someone who is known to be more of a risk-taker. Whereas Eisenkot is a very steady kind of hand, Bennett is entrepreneurial, a high-tech kind of person, and a risk-taker in many respects.

Daniel Byman: Is there an example you can think of where that difference between Eisenkot and Bennett might show up? I mean, I realize a lot of that is about future contingencies that are hard to predict. But is there something you're thinking of in particular where, you know, boy, this really might go in a different direction depending on if which one of these wins, if, if either does?

Natan Sachs: Yes, absolutely. So, I, it, right now, right now it does not look likely that Bennett will be prime minister. It looks likely that it's either Eisenkot or Netanyahu but never say never. We're, we're getting close, but still never say never. Could be even Lieberman if he manages to play these politic- political cards right, and he's a master politician, so who knows?

If it were Bennett and not Eisenkot, you may see a much more hard-line approach on some of the aspects in Gaza, for example, and less of a willingness, especially in the West Bank, to entertain pressure from abroad. Pressure from abroad, given that there's a Trump administration, might be quite limited. And on some important issues such as terrorism against Palestinian civilians in the West Bank, which has been rampant in recent years, that is one on which Bennett and Eisenkot I think would be of one mind, which is that that has to end quickly, and they'd be very eager to prove that, perhaps for different reasons.

Bennett, who is very much pro-settlement, would like to show that that is not the essence of settlements. Whereas Eisenkot believes in law and order and, and the military as the sovereign there would be able to, should be, be ordered to end this. But you could see quite important differences, and you might see Bennett more open to You might call it adventurism or more, more risk-taking in terms of use of force, be it in Iran or, to a lesser degree, in Syria or Lebanon or elsewhere. Not that Eisenkot would not use force and dead- very deadly force. He would, but I would expect it would be m- it would be less liberal and in that ca- in that regard, very important.

And, you know, some of this is, again, as you said, it's hard to predict what, what contingencies will emerge. But on the Palestinian issue in particular, there are profound differences between them. Eisenkot is no big lefty, but he is certainly far to the left of Bennett. He does, is not an advocate of the whole state of Isr- whole state, whole land of Israel that, that Bennett very much subscribes to. Bennett was a settler leader in the distant past. He's probably changed somewhat, but he fundamentally has not changed his views. Eisenkot was never there, and if anything, he comes to the center from the left, not from the right.

Daniel Byman: Let's go back to Netanyahu, who, as you said, you know, still has a, a good chance of winning this election. He's survived crisis after crisis that might have ended another lesser politician's career. That said the polls at least suggest that right now he's behind. What might change or have to change for him to emerge triumphant in October?

Natan Sachs: So, we should distinguish between two so-called victories for Netanyahu. Right now, if the polls are vaguely correct, it seems very unlikely that he would win outright. So it seems unlikely that he'd be able to form a coalition the day after within the current camps, at least, and then be sworn in as a prime minister for another time.

But Netanyahu would be counting on other possibilities. The, the most obvious one would be to, to draw, in a sense, with the opposition. He, not him alone, but he has certainly been a force behind it, has convinced Israelis and many in the opposition that it would be illegitimate politically to base a, an alternative coalition on votes of Arab parties, and in particular, in this case, Ra'am, which was a party, sorry for the pun, but it was a party to the change coalition that Bennett and Lapid led. They formed that coalition with support from Ra'am. Of course, it was ironically Netanyahu himself who had first negotiated with Ra'am to maybe support his side. But now after October 7th and after the experience of the change coalition falling apart, there is pretty widespread belief in Israel that that cannot repeat itself. Mansour Abbas, the leader of Ra'am, has even said he doesn't really want it. In the context of war, it would be complicated. I wouldn't rule it out nonetheless, in some form or another, that Ra'am supports a coalition in some scenarios.

But that is what Netanyahu is counting on, that the opposition without the Arab parties. So not really Jewish opposition, because there are many Arab voters who would vote for the Jewish parties and some vice versa. But the, the quote unquote “Jewish parties,” that they would not reach 50% plus one. And at the moment, they are just on the cusp of that, perhaps just below. So they are, at the moment, on between 58, 59, sometimes 60 seats out of 120, and they need 61 without the Arab parties to clearly have a different coalition. And then they could get support from Ra'am or others after they're sworn in.

So that's Netanyahu's first hope. If that happens and no one manages to form a coalition, neither Eisenkot or Netanyahu nor no one else, then in theory, Israel would go to new elections in a matter of a few months, and in the meantime, the caretaker government would be the same government. The caretaker prime minister would be Netanyahu, and all the ministers remain in place. This happened more than once, of course, between 2019 and 2022 with a, the series of five elections in Israel. So not losing, and then throwing the dice again and again and again until they come out the way he wants, as they did in 2022. So that's, that's sort of the, the number one hope for Netanyahu.

The other is that the polls could be wrong. There's a limit to how wrong they can be, but there is certainly an effort to portray other polls. Channel 14, which is sort of the Newsmax of Israel, has consistently shown other polls where Netanyahu wins. They're alone in this, but we've seen polls get, be wrong in many places before. I think we in America know something about it. This would be bigger than simply a small mistake, but it could happen.

Polling also ends three days before elections, and there's always some movement in those last days when people make up their minds. It seems unlikely because people have very clear positions already in terms of what they think of Netanyahu, but nonetheless, there are big question marks here. There are many right-wingers who are polling as voting for Bennett, for Lieberman, who are very right-wing themselves and may in the last minute feel, you know, I can't vote for the left, the, the, the terrible left and I don't want Eisenkot. We, we've got to “go home” to the Likud, for example. This has happened before. 1980 is famous in Israel. '84 to a degree, where Likud voters sort of said, "I'll vote something else," but then they came home as quote-unquote.

You could also see party, small parties not pass the threshold. There's a minimum threshold of about four seats. It's 3.25%, so almost four seats to pass. If there's a surprise party that doesn't pass that could change things. At the moment in the opposition camp, there isn't any party that's close to that except one that is not quite passing, or one and a half. I'd expect that until, but by the time the final lists, the final parties are presented for elections for the ballots, which is coming up very soon they probably will no longer be running. So I think the opposition may be safe in this regard, but you never know.

Or defections. I'm, I'm always reminded, apropos Lawfare. I remember running into Ben Wittes in the hallway many years ago. This would've been probably 2019. This was a crisis where Netanyahu was not able to form a coalition for two reasons. One, Naftali Bennett had not passed the threshold. Naftali Bennett was very much part of Netanyahu's camp, did not pass the threshold. His party stayed out, which was a big surprise on election day. And then Avigdor Lieberman, for some odd reason, was not doing what we all thought would happen, which is join Netanyahu's coalition as he always had been.

And Ben asked me, "Is this is this serious?" And I said, "Come on. Lieberman's been with Netanyahu forever." This, by the way, this is a tradition of mine telling every time on, on Lawfare, I explain how I was wrong on a different occasion. So, you know, he was Netanyahu's aide in the '90s. “This is all show. He's, it…” And I was completely wrong. Lieberman has a personal, more than grudge, vendetta now against Netanyahu. It's personal. It's about his trials. He also now has political and other reasons. It's very deep by now. But could Lieberman do something surprising? Who knows? He's, he's unpredictable. I d- I don't think it's likely, but could something like that happen? Anything is possible.

Still, the, in the main, it looks like either Eisenkot wins or there's some kind of a draw, and then there's a very difficult question for the opposition. Can they form either coalition or a minority government with some kind of support or abstention from the Arab parties? Could they keep together themselves, Lieberman, Bennett, Eisenkot, while doing so? Or could Netanyahu lead to new elections while he's caretaker prime minister?

Daniel Byman: Natan, I'll, I'll first say, like the rest of us, you are certainly wrong from time to time. You're just less wrong than the rest of us when it comes to all things Israel. So, you're certainly the first person we listen to.

I wanted to go a little farther on some of the smaller parties. In fact, we're recording, and it was just in, on August 26th, and it was recently announced that Ofer Winter just formed a new party. Talk to us about kind of why these parties are emerging, and how much do they matter? Are they really just kind of background noise, or is this the sort of thing that, you know, in this election could tip things one way or another?

Natan Sachs: Yeah, so th- they may be the deciding factor, these sort of small parties. We're still seeing a whole bunch of parties floating around because we have not arrived at judgment day, where they have to actually submit their lists and their official parties to the ballots to the Central Election Committee. That's coming up very soon, as I said, but, but at the moment this is where we are.

And so we have a few parties. One is led by Benny Gantz, who is a former defense minister and very prominent, but now is polling consistently below the threshold. He's, he's sort of considered a political disaster and with good cause. There are a couple of other important parties. You mentioned Ofir Gantz from the right, very much from the right. But then two, another party from the right but softer right he- led by Gilad Erdan, former ambassador to the UN and minister, and another party led by Hili Tropper and, and, and Yoaz Hendel. Doesn't matter exactly, but they're more center but leaning very much toward Eisenkot. And they are at the moment polling below the threshold, and I expect they would join, the last party would join Eisenkot before the actual submission of lists.

Why are they there? So they're there, all of them are trying to capture either what you might call the “soft right” which I'm not sure exists. I think the soft right is already, already with Bennett and Lieberman and others. Or, and this is interesting, national religious voters, so modern Orthodox voters in Israel, which is not a huge community but is a significant one and, and, and very powerful these days, who are disaffected by the traditional party that would represent them, which is currently led by Bezalel Smotrich. He is very far to the right of some of them, and he is also much more conservative religiously, and that's important. So he is, he's on the verge of ultra-Orthodox. It's known as Haredi in Israel, so between national religious and ultra-Orthodox. Whereas the majority of them are quite far from ultra-Orthodoxy, very much modern Orthodox and sometimes liberal.

And so those voters, again, they're not huge in numbers, but they are significant and, and any seat here could decide the elections. There is some floating around there. They are looking for a place to go. Bennett is an obvious choice for them. He was the leader of their traditional party before he jo- he joined the opposition and formed his own government, the change government. That “betrayal,” quote-unquote, for many of them disqualifies him, but maybe not for all of them.

And so various parties are trying to capture them, those who don't wanna vote for Smotrich, both because he himself is extreme in, in the ways I mentioned but also, and this is, this is a very central point, because of the non-conscription to the military of the ultra-Orthodox. So modern Orthodox serve in very high percentages in the military, and certainly in the last three years, this has been an enormous toll on reservists with a lot of bereavement, loss of businesses, loss of families. Whereas the ultra-Orthodox, who in some ways are close to the modern Orthodox they do not serve in the Israeli military, and this coalition sustained that and is trying to push that even forward. This is a major issue in Israel and one that the opposition, of course, is trying to, to hammer on, and one that is, has become very important for the modern Orthodox, simply because there's a natural wedge here in the Netanyahu coalition between modern and ultra-Orthodox.

So a lot of these parties are trying to capture soft right, modern Orthodox, people who are uncomfortable with either side, middle of the road, third way, classic kind of independent candidates. They are having very limited success so far, probably because most people have an opinion if they want Eisenkot or they want Netanyahu, and it's a bit like Trump/not Trump in the United States. Most people have a rather strong opinion on this one way or the other. And so middle of the road is difficult.

But if they run, then a major question will be which ones will not pass. If they do not pass the threshold, their votes go to the waste. And if Winter, for example, runs but does not pass, or if he runs and therefore Smotrich does not pass the threshold, which is quite possible, they could lose a lot of seats and give the victory to Eisenkot. If that seemed to be the scenario, I would not be surprised if Smotrich was in fact incorporated into the Likud in a technical kind of arrangement just for the election, with Netanyahu feeling responsible for his bloc, and he's kept some slots open in the Likud list to do just those kinds of things if he needs that. But these are crucial. Both their weakness, I think, says quite a bit about the mood in Israel but we will, we will be waiting until the day after ele- the election, in fact, several days after, to see the final tally of any party that did not pass a threshold which could easily decide the fate of the elections.

And last point on this, the last elections in 2022, they were not decided by this, but the strength of the Netanyahu coalition was very much bolstered by the non-passing of the Meretz Party from the left, so the most leftist of the quote-unquote “Jewish parties.” Of course, it had an Arab representative as well. They did not pass then, and that gave Netanyahu, instead of a 61 out of 120 majority, it gave him a 64 majority, more or less, 61, 62 to 64, which was very consequential, especially after October 7th. What used to be Meretz is now part of the Democrats Party, along with Labor, so that's no longer the case, but it would be very consequential.

Daniel Byman: So we've been talking about a range of the major parties and the smaller Jewish parties. Let's switch over to the Arab side. Arab turnout was relatively low as a percentage of population in 2022. If there were high Arab turnout this time, what would it mean? Are Arab parties able to take advantage of it? Would this matter in the overall coalition politics in a significant way, or are they really just to the side of the broader political system?

Natan Sachs: So it's one of the in some ways tragedies of the Israeli political system that, that they are so much to the side. But it, but they should not be discarded. So first on the Arab parties, you know, they, these are m- essentially four very different parties from one another. They span from what used to be a communist party and is still very much a leftist, secular, liberal, and very left-wing economic party, almost on the verge of communist. Some of them are communist. That's Hadash, that's sort of the old traditional party. All the way through a nationalist party, and then a very nationalist party, Balad, and finally to an Isl- Islamic-based party, a party that just separated officially from the Israeli from the Islamic movement of Israel. That's the Ra'am party that I mentioned before with Mansour Abbas.

So three of the parties are now running together, Hadash, Ta'al and Balad, and that is something that's very popular among Arab Israelis, Palestinian citizens of Israel. Some of them define themselves either way. They are running together in one list, the joint list, and then Ra'am, which ironically is, is named the “United Arab List,” and it will run separately.

The joint list is a popular thing. This is a, a popular demand among many Arab voters, and they seem to be gaining some from this union, in part because Balad was still running and would not have passed the threshold on its own, and so they're getting in. This could help their power, and that can be meaningful. Certainly, if there's a change government, potentially even if not, but I think in this environment, if there's a change government having more seats in the Knesset can lead to tangible benefits to your population if you know how to use it.

The former leader of Hadash, who's now not gonna be in the Knesset, Ayman Odeh was very good at using that kind of leverage, and as is Mansour Abbas, who was really the master of it and did so much as to join a coalition officially and get, of course, very meaningful and very important policy changes that, for example, helped to fight lawlessness a real breakdown of law and order in many Arab communities in Israel something that the Arab community itself has been demanding, that, that law and order be restored there. And it, there were, there were some real successes, limited, of course within its short timeframe and a real breakdown since the fall of the change government and the return of a Netanyahu coalition.

So their gain would be important in that regard. One of the, I think, a very lamentable reality is that because they are shunned effectively, there's this taboo on joining them, which not all have subscribed to. And I'll note that Eisenkot himself has avoided promising he would not lean on Arab parties, Ra'am in particular, but Bennett and, and Lieberman have. Because of this, this almost boycott of them, their gain, ironically, could hurt the opposition.

So if you think of three blocks in a sense, the Netanyahu block, the Eisenkot block, and then the Arab party block, the bigger the Arab party block is, the smaller the other two would be by simple math. And so in a sense, if, if they were tiny, both other blocks grow. And since Eisenkot's block is slightly bigger than or is, is actually bigger than Netanyahu's block in the polls, you'd expect him to then cross the 61 threshold. So there's a real irony here, almost a tragedy, that if an Arab party didn't pass the threshold, which does not seem likely, although Ra'am is not far from the threshold, it could ironically help Eisenkot.

Conversely but just to be s- just to be clear, I'm not hoping for that. Just to be clear, you know, I, I think in a scenario where, where the Ra'am party in particular is able to gain real support and with a leader who is extremely pragmatic, especially politically, Mansour Abbas, you could see them nonetheless helping Eisenkot in very important moments, and it's not only in forming the government. If, if let's say Eisenkot gets 61 in his block and manages to form a government, a government coalition that relies on 61 out of 120 is a very weak coalition unless it has the support, either official or unofficial, from other parties, and the Arab parties can serve this. They can serve as the strategic buffer for an Isaac government, and they would which mean- means that a government of 61 could be actually be much more secure and long lasting than you'd expect from a 61.

And the last very important point here, I, I've spoken of Mansour Abbas as very pragmatic, very smart, very attuned to the Israeli population in Israel, and what he needs to do to try to better his constituency within the reality in which he lives, which is a Jewish majority state, a dominant Jewish majority state. He speaks Hebrew very well, of course. He is now in advanced conversations, they're already public but they've been going on for many months, with someone named Yoav Segalovich, who was a, a very senior police officer, so one of the heads of the Israeli police, and then a deputy minister from Yair Lapid's party, Yesh Atid, as deputy minister of national secur- of the police, essentially, and was in charge of law and order in the Arab sector and was very successful in this. And therefore, ironically, for someone who comes from the, the core of the Israeli national security sort of establishment, is popular in the Arab-Israeli street. He is in advanced conversations, and it, it looks like it's gonna happen to be number two in Ra'am, which is, you know, the Twilight Zone. If we weren't, if we were not in the Twilight Zone in so many other ways I would, I would be shocked, but I'm not shocked by anything anymore.

So you could have in the Arab, in this Arab party that, that until a few weeks ago was officially associated with the Islamist movement, Islam-Islamic movement of Israel. You will have number two, a, you know, equivalent of a general, Yoav Segalovich. Yoav Segalovich is someone, if he supported Eisenkot, I think Eisenkot could say, you know, "This guy's a general." And he would be a candidate from Ra'am to be minister of the police and try to undo what I think is horrific damage done by Itamar Ben-Gvir to the, the police. It would take a lot for all that to happen and for him to be a minister for Ra'am. All this would be hard, but it's a very interesting move, a very brave move. This is not just a Jewish candidate, which exists in other parties. Hadash has a Jewish candidate. But he's considered completely out of the Israeli consensus. Yoav Segalovich comes from the center of Israeli consensus, Israeli politics deputy minister from Yesh Atid, and now might be number two in Ra'am. This is very significant, very interesting.

Daniel Byman: Let's talk about, you mentioned Ben-Gvir. I always talk about Smotrich. These two individuals have gotten a lot of attention, not only in Israel, of course, but in the United States, and as a sign that many look at the current Netanyahu government and think of it as, as extreme, you know, by even critics of Israel would say by Israeli standards, that you have these individuals who are, you know, prominent in the government. How important are they to Netanyahu? What are their chances in the coming election?

Natan Sachs: So first of all, they, they deserve every portion of their reputation. They are extremely extreme. They are very different from one another, which is, I think, lost sometimes in the conversation. Smotrich is a very smart, able bureaucratic operator who comes, as I said, from the very conservative ideological settler movement that sees itself as elitist. Again, very conservative religiously and, and ultra-conservative in other regards, or ultra not conservative, ultra-hawkish in other regards. He's been called by many racist, and he has said many things that would justify that 100%. And as minister, he's Minister of Finance, which is an extremely powerful position. It's not just Treasury, it's OMB plus Treasury, and OMB is maybe more important in the Israeli context. So a very important position.

But on top of that, he has a second hat, which is in the Ministry of Defense. He's a m- second minister in the Ministry of Defense, and he got civilian affairs in the West Bank, meaning settlements. And he has overseen a, revolution may be the wrong word because it didn't change course, but it dramatically accelerated the course that we saw before, with hundreds of new outposts and also a change to the bureaucracy that'll be very hard to undo. And he has been extremely, extremely influential to Israel's long-term trajectory in that regard, in terms of, of policy, of actual policy.

He, as I said, is weak politically at the moment. He's weak both because he is seen as extreme even by his natural constituency, but also because of this association with the ultra-Orthodox and their exemption from conscription to the military, and the two, the two sort of fit because he is very conservative religiously also. The fact that he is in, al- aligned with the ultra-Orthodox is suspect to quite a few of the more liberal modern Orthodox.

Itamar Ben-Gvir is of a very different elk. The, Ben-Gvir has been convicted many times and, and accused I think over 30 times of criminal offenses. I guess with him I can use, he sort of was seen as a low-life criminal n- not criminal, low-life provocateur for many, many years. I, I grew up in Jerusalem. You would see him. So whenever there was some demonstration of some kind, he'd be with, like, the dozen people. If there was a left-wing demonstration, he'd be with a dozen people on the other side of the road spitting and yelling. And that's sort of the type he was. Shortly before Yitzhak Rabin was assassinated in 1995, in November Ben-Gvir was famously caught on camera or, or speaking to the camera with the emblem or the logo, the sort of emblem of the car, the Prime Minister's vehicle, and saying, "We got to the car, we'll get to Rabin eventually."

And, he's now closing four years as minister in charge of police. So, so w- it's a very, very different reality if, if you think of Israel of the '90s and all the way to here. So they, they deserve the extremist labels and then some. And what he's done in the police also, again, very ably actually, is to really corrupt it dramatically, become extremely involved in, in all appointments make the police really his own almost, kind of, body. It'd be very, it will take a lot of effort to, to fix by someone who had a more law and law and order approach to things.

They matter. Now, Ben-Gvir is stronger politically. He's stronger than he was, and he's much stronger than Smotrich. He captures those who are looking for the most right-wing thing I can find in the context of war and of the trauma of October 7th. There are young people from all walks of l- so from all communities. So ul- ultra-Orthodox sometimes are voting for him, something that scares the ultra-Orthodox leaders and parties who, who view him, Ben-Gvir, who is n- who is religious, but, but very laxly so, and as a rabble-rouser, as, as, as unserious. He constantly goes up to Temple Mount, for example, to try and pray there. That is something that ultra-Orthodox, most of them see as an absolute sin against the very explicit orders of the big rabbis for religious reasons we can get into. And so they're very afraid of him.

Politically, Netanyahu feels since about 2019 that since the center will now not cooperate with him, if you don't count Gantz, then he must secure his far right. This is also a lesson he learned all the way back from 1999 when he lost the elections there, and he felt that he lost the far right. So he always felt that he has to hold his flank close. But if traditionally he always preferred to have a center party come into his coalition so that he could govern from the middle of his coalition, now he's relied very much on the far right and has been beholden to them, and even just these appointments of these two individuals to very, very influential roles, especially Smotrich, was a shocking thing in 2022, and I think is a sign of just how beholden, beholden he is to them. And moreover, the Likud party today is not that far from even the Kahanist views of Ben-Gvir and others. We've really seen an, a movement to the extreme, certainly by the Likud.

So they are very powerful, very important. Their power, though, comes not from their size. They are in abs- in numbers not huge at all. Their power comes from the weakness of Netanyahu and his, his need for every last vote in his coalition. In normal times, even Netanyahu's predecessor at the head of the Likud, Yitzhak Shamir, they would be shunned. Yitzhak Shamir, when Meir Kahane, the ideological godfather of Itamar Ben-Gvir spoke in the Knesset, he was elected once, and then he was barred from, from being elected again. When he was elected, Prime Minister Yitzhak Shamir of the Likud, Netanyahu's own predecessor, would stand up and leave the plenary so as not to give any room, any legitimacy to the vile, racist words of someone like Meir Kahane. And here we have his predecessor appointing Ben-Gvir to, to this kind of ministry for four years. It's a very different reality.

Daniel Byman: It wouldn't be a Lawfare podcast if we didn't talk about Donald Trump. And I can imagine two radically different scenarios. Well, let's say three. One is Trump publicly endorses Netanyahu, right? And, you know, to the point of, you know, calling on Israelis to vote for him and criticizing Netanyahu's opponents. The other would be a break with Netanyahu, criticism of him, talking about how he's a bad ally and he's messed up the Israel-U.S. relationship. In my view, in a way, the least likely might be doing nothing. But how much does, would Trump matter either way in an Israeli election?

Natan Sachs: So again, I have a sort of decidedly mixed answer. A lot but I think it's already baked in to a certain degree. So I agree with you that it seems hard to believe that Trump would, would avoid the temptation of, of stepping into this, right? Here's an election in a country he thinks he should be, you know, president and prime minister of Israel as well, and how could he stay out of it?

Trump is, remains popular in Israel, much more popular than he is in the United States or in almost any other country, for many reasons, some of them stemming from his first term recognizing Jerusalem as the capital of Israel, Israeli sovereignty in the Golan Heights. But also for many in the opposition, a Trump-led ceasefire that allowed the freeing of all remaining hostages, living and dead, which was very, very important, emotionally resonant among the anti-Netanyahu camp, as well as the Netanyahu camp. So he remains popular in Israel. And of course, the, the war in Iran is, as extremely unpopular as it is in the United States, was widely popular in Israel, at least in the beginning. But Trump has also, of course, taken a very different tack in recent weeks, few months now, with the consequences of the Iran war being as they are so far, and a very different attitude than most Israelis or Netanyahu to what should happen there.

That means that for the Israeli voter, it's a mixed bag. On the one hand, he is influential, but it's not some blind following of Trump. We saw after Trump signed the MOU with Iran, for example, even the Newsmax, Channel 14 that I mentioned before, which very much speaks Netanyahu's line. I mean, sort of in a not surprising, surprising way, it's the same words that Netan- Netanyahu's people speak. You will also hear in the, in, in Channel 14. They came out guns a-blazing even at Trump himself, but especially against J.D. Vance, which is part of why you saw J.D. Vance responding the way he did.

So there's a real, there's a real difference there, and it's not just personal. It's also there's a fundamental difference of priorities. Maybe not of, a difference of interest, certainly, but also a difference in priorities. The Iran question itself versus, for example, the Straits of Hormuz, global economy. These are things the Israelis care about, but they do not care about to the degree that American, the American president does. They care about other things much more.

All this to say, it would affect things. It could help Netanyahu, certainly, if there was a public endorsement but it may already be baked in. I don't know if there are many opposition voters or, or even middle of the road last few people who have not decided would say, "You know what? Trump said so I'll, I'll do this."

However, we saw Netanyahu visit the White House just a few weeks ago and did not, he did not get a photo op. He did not get what he really wanted. That was very telling. I don't know who decided that in the White House. I'd be surprised if J.D. Vance did not have a strong opinion in one direction on that. And I think it's very telling for Netanyahu, and we do, we do not know at the moment, at least, of an, the next planned visit before October 27th. I would be very surprised if Netanyahu and his people are not very much hoping to have a White House meeting before October 27th.

Because despite what I said, Netanyahu does have one argument that is not completely facile, which is, like me or dislike me, do you really think someone else like Gadi Eizenkot has my experience to play in the big leagues? You know, in these, the five elections that preceded 2022, one of the slogans was “a league of his own.” And you saw Netanyahu in big campaign ads shaking hands with Trump and with Putin and with Modi, not because Putin is popular in Israel, he's not, but because here was the leader who can play in that league with the top leaders of the world, good and bad, of any kind. Who else could do it? Could Gantz really do it? Was kind of the, the subtext, and that's the subtext now too. Gadi Eizenkot's English is, is mediocre compared to Netanyahu's, certainly. Could he charm Trump the way Netanyahu obviously does? And, and that is sort of a subtext and sometimes the text of what Netanyahu is sort of selling.

If Trump broke with Netanyahu, that would be another, that would be a real blow because that would go against the assumption, against the grain. So if he actually broke very clearly, I think that could be significant. That I think would be surprising. For him to actually endorse Eizenkot, it seems a lot. And if he says things subtly, he has already said things subtly, and they can be discounted easily because of who Trump is, and also because Israeli politics don't work on subtleties. They work on sledgehammers to the head.

Daniel Byman: You've said this is an incredibly consequential election. We've talked that this is a close election. Americans wake up on October 28th. What would be a surprising result, right? Something that, you know, kind of goes beyond what we've discussed today and, you know, w- what sort of factors might bring that about?

Natan Sachs: So small surprise, but nonetheless surprise, is a clear resounding victory for Eizenkot. It's possible and I, resounding, I'm, I'm using too freely. But if we saw 62, 63, 64 as a clear, there's no question that Gan- that Eizenkot can form a coalition without the support of Ra'am and then bring Ra'am or anyone else in officially or unofficially, that would be a minor surprise. I think it's certainly in the cards. I think people may be overestimating the chances of that. I think Polymarket and Kalshi sometimes do. But that is a possibility. It's nonetheless a surprise.

A much bigger surprise is, is a Netanyahu victory. That, that would be a genuine shock given the polls. Not impossible, as I said. You could see all sorts of scenarios, and that may not be on the 28th. It might be a little bit later when you see the mac- machinations of different parties. But if the polls were very wrong, and there's a sense on October 28th, and Netanyahu did it again and outperformed the polls dramatically that would be a surprise.

A slightly different kind of surprise, I think, is there, there is another scenario, which is that no one wins, but instead of Eisenkot allowing Netanyahu to go to new elections as caretaker prime minister, he manages to convince the opposition, if not to form a minority government with the abstention of Ra'am and the Joint Arab List, at least to form a minority government that then goes to elections, but it itself is the caretaker government. So you can imagine they form a coalition and say, "Look, we can't govern without a majority. We're calling elections, but guess who's the prime minister in the meantime, and who's the minister of everything else?" It would be from the opposition. That would take a lot of political maneuvering but I think in a logical sense, it makes a lot of sense, and I think that would be a surprise but, but not impossible.

You could al- you could also see other last-minute surprises. You could see Bennett surging instead of Eisenkot. If something happens last minute, I don't think it's impossible. Or you could see in the days after the election some other configuration, especially in the, the opposition camp, say, Lieberman insisting that he needs to be prime minister in rotation or in another form and threatening to break with the opposition if he doesn't. I would not completely rule that one out, actually. It would be a surprise, but not a complete shock again, given what I said before about Lieberman.

Daniel Byman: Natan, thank you very much.

Natan Sachs: Dan, thank you very much. It's always a pleasure to talk to you and to Lawfare, of course.

[Outro]

Daniel Byman: You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts.

Look out for our other podcasts, including Rational Security, Allies, The Aftermath, and Escalation, our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written work as well at lawfaremedia.org. The podcast is edited by Jen Patja and our audio engineer this episode was Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.

[Intro]

Alan Rozenshtein: It's the Lawfare Podcast. I'm Alan Rozenshtein, associate professor of law at the University of Minnesota and a senior editor and research director at Lawfare. Today, we're bringing you something a little different, an episode from our new podcast series, Scaling Laws. It's a creation of Lawfare and the University of Texas School of Law, where we're tackling the most important AI and policy questions, from new legislation on Capitol Hill to the latest breakthroughs that are happening in the labs. We cut through the hype to get you up to speed on the rules, standards, and ideas shaping the future of this pivotal technology. If you enjoy this episode, you can find and subscribe to Scaling Laws wherever you get your podcasts and follow us on X and Bluesky. Thanks for listening.

Intro Voices: When the AI overlords take over, what are you most excited about? It's, it's not crazy, it's just smart. And just this year, in the first six months, there have been something like 1,000 laws. Who's actually building the scaffolding around how it's gonna work, how everyday folks are gonna use it? AI only works if society lets it work. There are so many questions have to be figured out, and- Nobody came to my bonus class. Let's enforce the rules of the road.

Kevin Frazier: Welcome back to Scaling Laws, the podcast brought to you by Lawfare and the University of Texas School of Law that explores the intersection of AI, policy, and of course, the law. I'm Kevin Frazier, the director of the AI Innovation and Law Program at Texas Law, and a senior editor at Lawfare. I'm joined today by my guest co-host, Kate Klonick, an associate professor of law at St. John's University and a senior fellow at Lawfare.

Today, we're joined by Kenji Yoshino. Kenji is the Chief Justice Earl Warren Professor of Constitutional Law at NYU and a member of Meta's Oversight Board. He recently authored a piece in Tech Policy Press with fellow board member Ronaldo Lemos, arguing that frontier AI companies should learn from the Oversight Board's approach to independent governance. But that begs the question of what exactly we should and shouldn't learn from the Oversight Board's track record, and Kate and I dive exactly into that with Kenji.

To get in touch with us, email ai@law.utexas.edu or follow us on X or Bluesky. Also, good news, we were recently ranked second in the Feedspot AI Policy Podcast rankings, which is super exciting. But as my dad and Ricky Bobby would say, "If you're not first, you're last." So if you like this podcast, please go leave us a review, hopefully five stars, and help us make sure we get that number one spot. And with that, giddy up for a great show.

[Main Podcast]

Kenji, welcome to Scaling Laws.

Kenji Yoshino: Thank you so much for having me.

Kevin Frazier: So everyone's heard of the Oversight Board, or presumably everyone who listens to Scaling Laws has heard of the Oversight Board. But just in case that their mind has been occupied with other things for a little bit, before we dive into how the Oversight Board model may apply to the AI space, Kenji, can you remind everyone, well, first and foremost, what your role is on the Oversight Board, and then just a brief overview of the Oversight Board's origin and jurisdiction?

Kenji Yoshino: Fantastic. Although in terms of origins, Kate might be the global expert on this, so I may have to defer to her and her excellent work. So the Oversight Board is a group of 20 individuals who are experts in some domain of social media regulation. And the board has been in existence for six-plus years, and our job is to evaluate Meta's content moderation decisions against both their own stated standards and against international human rights law.

So I'm a constitutional law professor in terms of my day job, so Kevin, I always think about this a little bit like judicial review, right? So, like, the community standards that Meta itself promulgates are like statutes. So the first order of business is to say, does this post kind of conform with the community standard or not in terms of the ultimate decision that was made about it? But then there's a kind of secondary question where, even if the community standard was kind of totally executed to the jot and tittle and was kind of perfectly done, the community standard itself could violate international human rights norms. And so, if you have, you know, a lack of notice, or if you have a violation of the rights of a protected group, or there's no proportionality or some such, then we could say that the community standard itself needs to be tweaked. And so it's really that two-tier decision-making that we engage in.

This is a really, present company excluded, extraordinary board. It is 20 people around the globe, and it's been tremendously exciting really. You know, I know, and we will get to, I'm sure, the criticisms of the board, my knock on the board, but it really has been one of the great kind of pleasures and honors of my professional life to be able to, sort of, engage with 19 other people from around the world to try and solve a global problem with regard to social media.

And going back to the origins of the board, and Kate, you know, if you have anything to add, please do. We didn't really begin from the city on the hill. We didn't begin with idealism. We, we began out of utter crisis. So this is a moment when Cambridge Analytica was happening, if you can cast your mind back there, or where the Rohingya massacre was being attributed in part to Meta's lack of care with regard to its policies. And so we were really created in order to create some guardrails for the organization. And so oftentimes, this is a point of irritation for everyone on the board, we're kind of conflated with Meta, but we really regard ourselves as being independent of Meta and being Meta's watchdog. So what have I left out?

Kevin Frazier: Well, there's, there's only so much we can dive into for the sake of a single podcast. So I think you've done an excellent job of setting the initial scene. One thing that I'd love to explore a little bit further, as you raise in your recent tech policy piece from July 7th that you issued with your fellow Oversight Board member Ronaldo Lemus- Lemos, excuse me, was the fact that you mentioned in that piece as well, as you explained here, that the Oversight Board is continually a sort of work in progress. And of your accomplishments or of the actions you all have been able, able to take, you've issued more than 200 decisions, and you've also issued more than 300-plus recommendations.

And so as we're exploring this as a potential model to apply to AI labs, and more generally the idea of private oversight or independent oversight of any other entity, can you delineate the difference between when you all issue binding decisions and when you all issue recommendations, and to what extent those recommendations have actually informed Meta's practices?

Kenji Yoshino: Great. Yeah. Thank you so much for saying that, because I should have included that in my intro. So the original commitment that we have according to the governing documents that Meta created was that on leave up/take down decisions we are binding. And so if someone says, you know, "I think all trans people should kill themselves," which was one of the cases I'm proudest of where we said that actually is in complete violation of our suicide and self-injury policies as well as at the time your anti-trans policies, so you, you have to take it down. They've always abided by that. So in that sense, a leave up/take down decision is binding, and as you say, there have been 200 of those.

Sometimes we all get a little bit hot under the collar. I will say, you know, that when we, we told Meta that it needed to take down the Hun Sen post. So this is the then prime minister of Cambodia inciting violence, in our view, against his political opponents in a long speech that he gave. You know, Meta had a very different view, you know. And, you know, in fairness, it was a, you know, it was a totally arguable position to say it was one clip in a, in a long video, and he said, you know, "We'll just take the bat to them, you know, if, if they don't, if they resist us," and is taking the bat to someone really incitement to violence or not, et cetera, et cetera. But if you looked at the whole record, we believe that this was an incitement to violence, especially against past history and the like, and so we said take it down.

And that was the moment, you know, I think every kind of governmental official or quasi-governmental official, even an administrator, has those kind of make or break moments where you make a decision, you kind of hold your breath. You know, Justice Scalia used to say this about Bush v. Gore, where he, you know, issued the opinion, and he was so proud of the court that the country followed. And this is a moment, not to compare ourselves to the Supreme Court or to that momentous decision, where we did hold our breath because we thought, you know, Hun Sen could react to this by shutting down the entire internet in the country, or he could respond to it by kicking Facebook out of Cambodia. And so it was really something that cost the company something, but the company still abided by that. So, I'm incredibly proud of both ourselves and of Meta for abiding by that agreement to say if it's a leave up/take down, it is binding, and Meta has never betrayed us on that.

With regard to the recommendations, there is a re- requirement to respond to the recommendations, but not to take the recommendations. So they're forced into dialogue with us, but they're not forced to do anything. That said, I hope because we are kind of both reasonable people on, on both sides they've taken over 75%, by our count, of our recommendations. So usually you can argue or make the case for some kind of change. You asked for an example. You know, labeling of manipulated media was something that kind of shockingly they weren't doing, you know, until we pointed it out in the Biden manipulated media case, and so now that is just, you know, standard there in the Meta social media universe. And so that's, you know, Instagram, you know, and Facebook and recently we've, we've moved into Threads and, and other areas as well.

So, and if I, if I could say one more thing, like in the, when I was actually interviewing for the board, and it seemed like there were like 12 layers of interviews. I've never gone through so many interviews. So it's the final point, telling tales a little bit. I was, I was like, you know, take me or leave me, but like, I'm not doing any more interviews. Like, you know, you basically know me better than, you know, distant family members know me. So, you know, at this point, like we really have to fish or cut bait. So they took me, thankfully, and I'm very glad that they did. But one of the things I kept asking was, "Are we binding? Are we binding? Is there real teeth? Is there legitimacy here?" Because I don't wanna be some kind of heat shield for Meta. I don't wanna be some kind of ornamental. You know, it's a lot of time. You know, I don't wanna be some kind of, you know, ornamental kind of, thing, you know, that they're just attaching to make themselves look better. And the insistence was that we are binding, we are binding the up/down decisions.

That said, I will say that if I were to measure our impact under kind of truth serum, I would say that our biggest impact has been with the recommendations, not with the up/down decisions, because so many of the up-down decisions are just like knuckleheaded things that somehow flew under the wire, right? So, you know, the trans case, again, going back to that would be a really good example. If anyone had really properly looked at that, they would very clearly see that it violated their community standards. They didn't really need us to tell us to do that, right?

But the recommendations tend to go to the heart of how things like that happen. So we would ask things like, "Are you aware enough of what transphobia looks like?" Because there's a kind of malign creativity going on there where it wasn't this naked, "Oh, all trans people should kill themselves." It was a curtain that was hung and the caption was, you know, self-hanging curtains, right? So if you put it all together, it was pretty clearly, you know, trans people should kill themselves. But our question was, are you doing enough internal training of these moderators so that they know that this kind of malign creativity goes on? Because it's always this escalation war where you create a policy and then someone tries to evade it.

So even though the thing that I was focused on before I stepped on the board was just this hard line, it is so ordered, like, do you have to carry out the order? Ultimately, I think what, you know, Joe Nye calls soft power has been much more effective in terms of us moving the giant battleship that is Meta in one direction or the other.

Kevin Frazier: It's worth commenting and kind of laughing about the company that once said, "Move fast and break th- things" being described as a battleship. But I'll, I'll, I'll leave that for another podcast to dive further into. Kate, I know you had some additional questions.

Kate Klonick: Yeah. I just, you know, after years of watching the Oversight Board get set up but then of course, watching it from afar and kind of, hearing, you know, back channel through people that were at the Oversight Board, people who left, people who are still there kind of a lot of the things that you're saying, Kenji, really resonate. And I, I think they have the ring of truth to me because I hear them from so many different people, and I hear them kind of in, like, mostly the same way.

One of the main criticisms of the Oversight Board has been that it takes such a small percentage of cases, which I always just think has been so misguided. Because in the practicality, like, maybe you take, like, one, one you know, one out of every 100,000 cases if that, that actually, like, a lot of these things are in error. Like, the actual error. Like, they just enforce their, their, you know, the Facebook enforced the rules incorrectly and are happy to kind of, to, to reverse themselves and, like, in, in the small instance.

But what I have been really surprised by and I wouldn't have predicted is the value of recommendations. To send this signal, and also to consolidate stakeholders on the other side of things, which I just think is, and I, I, I put that down as a flag because I want to actually talk about that role that it could have in AI governance. Because there is, there's all of this talk about multi-stakeholder governance. There's all of this kind of, like, ideas, and it sounds so soft, frankly. And it is, because you just have people that happen to have access to these groups and this, like, way of doing things, and it's people who can set up an organization or people, and, like, some people who have connections to Facebook or some people who don't.

But the Facebook Oversight Board, the Meta Oversight Board ends, ended up being a really, I think, overall, one of the things that I've been most struck by is when I go from stakeholder to stakeholder that engages with you, and a lot of people were skeptical of it, that at the five-year anniversary, a lot of them were like, "No, we actually really love it." Like, "We actually really love it."

And that, shockingly, was not just stakeholders that had been skeptical. I heard that from people that were at the upper echelons, the top 50 people in Meta, saying that they had opposed it the entire time that I was inside the company covering it, and I heard about how much they were trying to kill it. And now they have, like, had this about-face. Because actually what it is is this really wonderful way to surface more kind of reflective norms that represent not just human rights norms, but norms generally and law in such a comprehensive, transparent way.  And, you know, the otherwise how are, how are they gonna do that? The policy team loves you guys 'cause you basically do all this incredibly hard thinking for them, and you're the right people to do it. Like, right? You know, you're thoughtful. I think you are. Like, you're thoughtful, like, really well-reasoned people with great train- diverse training in these areas from diverse parts of the globe.

But that being said I do think that one of the things that I'm super interested in is that you said at the beginning that the entire point of setting up the Oversight Board, and I think this is kind of something that people miss, was that you were, there was a response to this idea that Facebook was in this reputational hole, right? Facebook had no other choice in 2018 when Mark announced that he was going to start setting up this board than to try to kind of dig themselves out of this, and he had very little to lose by setting this up and kind of being responsive to this. And it was imagined as a group that was gonna go forward and maybe be a model for all of these other platforms for governance, and then it didn't happen. I talked to a lot of places. TikTok you know, TikTok, a few people informally at YouTube, a couple places I probably can't mention, but like some, a lot of places that considered setting up oversight boards, and the main thing was like, "We just are not hemorrhaging, like reputationally, the way Meta is. We don't have to do this."

So fast-forward to like the AI movement, and so I'm really kind of curious like what you think. You know, Anthropic has set up this long-term long-term benefit trust. I, I, I really take your point, but what has changed? What do you think has changed? What do you think this mo- about this moment has possibly changed that would create the incentive to do, for lack of a better term, the right thing. Like, to really set up these, these responsive arms of these incredibly, incredibly important public-facing companies.

Kenji Yoshino: Yeah. And we've talked as well about Jack Balkin's piece, you know, “Free Speech is a Triangle,” right? And so thinking about not just governmental actors and speakers, but these companies as being incredibly important, you know, actors in the speech landscape. So, you know, everything that you said was music to my ears. You know, thank you for your kind words.

But I also totally agree with you that my biggest worry is that we are not gonna see the groundswell of activity that we saw to create the Meta Oversight Board until there is an analogous crisis in the AI domain. So, you know, one could argue that there have been some crises in the AI domain. I'm thinking about the allegations about, you know, chatbots encouraging self-harm and suicide and, and the like. But I think it's gonna take something of an even larger scale, you know, whether it's, you know, national defense or something really wide scale that is gonna be the wake-up call that says "We, we need to create a board."

So it's just, you know, sadly human nature. Like, we can have the most idealistic and best intentions, but I don't think we could get our act together institutionally until the kind of rubber hits the road. And so as I said earlier, we were not born out of idealism. We were born out of utter crisis. And my sad prediction is that we'll take a similar, you know, event, right, in the AI domain for people to wake up and say, "Well, wait a minute, who is, you know, holding people accountable here?"

Kevin Frazier: So, Kenji, there's so much we can dive into with respect to whether the Oversight Board maps well into the AI space. First and foremost, I think the most obvious issue is content moderation is one thing, right? And as you noted and as Kate noted, calling a, a, a strike or a ball in the context of should you be able to say you want to kill trans people, for all intents and purposes as we've discussed here, pretty dang easy to decide that question. Yes, that is a horrible use of the platform and is prohibited under international law and the community standards. For something like should we develop an AI agent that's going to replace 10,000 jobs in a period of three days, this is obviously a over a over-exaggeration, but for those sorts of decisions, having anybody that has the requisite degree of expertise and background and knowledge and time and resources is incredibly difficult.

So you and Rinaldo highlighted three things that you wanna see from anybody that is in this kind of independent regulatory space for AI. First and foremost, you highlight having a credible body of overseers who are both independent and representative. Second, you say that they need to have meaningful oversight such that there's a credible external body of standards. And then third, you say that there needs to be transparency about what the decisions are, how they're made, and how they're responded to by the company. So we've got this nice three-part framework, and I think just about everyone listening to the podcast would say yes, yes, and yes. All of those things sound great.

But of course, as you all have experienced at the Oversight Board and as anyone who develops policy has experienced, the difficulty is that rubber meeting the road mentality. And for something where right now as listeners have heard me say on many occasions, we're still at the national anthem of this ballgame, right? We haven't even thrown the first pitch. Only 3.3% of Americans have paid subscriptions to AI. So we don't even know what problems and what crises may be ahead. You know, there, there's very real issues right now, but it's gonna get so much wilder.

And so I wonder, you said you're one of 20, and you all have a pretty substantial budget, all things considered. We can get into funding perhaps later. But, do we need five different oversight boards? Do we need 15 different oversight boards? Or do you imagine a sort of single entity being able to play this role, not only for a single lab, but perhaps across labs? Because one other thing that's interesting about the Oversight Board's origins was some degree of optimism that the model would then spread to other platforms, and that you all would become the oversight board for Facebook and for this other social media platform and so on and so forth. So let's just start with do we need multiple oversight boards, or is this a model that you think can scale in some other way to govern AI?

Kenji Yoshino: Yeah. That's so amazing. Thank you for that. So let me begin 'cause there are two things that tie together. So one is you said in our three criteria perfectly correctly that one of our criteria was that there has to be some, well, first of all, credible body of people, external body of law or standards that the company can't change on its own. And then finally, like transparency, right? And it's that transparency that did us in. And you know, Kate, you know, you know this better than anyone.

But you know, I kept thinking rather naively like, "Oh, well, I, you know, I know a lot of people at Google,” you know, through other, through my, you know, diversity and inclusion work. You know, “I know, I know a lot of people at, you know, other companies that we can reach out to, LinkedIn, you know, PayPal. Let's reach out to those people.” And of course, we got sort of one door slammed in our face after another. And as I thought about it, I thought like, A, why would they join an organization that was seen as Meta's creature because Meta would-- first of all, there are confidentiality issues and like how good are the firewalls, et cetera, et cetera. And then second of all, there's this notion of any kind of credit really redounds to Meta in the first instance, and so why would you allow a competitor to take a victory lap around you?

But then the last thing that I didn't think of was that we were victims of our own principles because we thought, you know, this has to be a public good. It has to be a published set of opinions that anyone can read. Like we can't ask people to pay for it. We can't hide it. We can't just send confidential advisor opinions to Meta. We have to, you know, publish it to the world. And what we realized is that people-- and I know this because I've had direct conversations with people who say like, "We love your opinions. We totally free ride off of you. There's absolutely no reason why we need to sign up for Meta even without the first two issues because this is a public good and we could just, you know, download it and, you know, learn what we need to learn from it, and then we're done," right? So they get all the benefits without any of the downsides.

So in an ideal world, right, this would be baked in from the beginning. So the question of how many oversight boards there needs to be, in fact, is an outgrowth of that point which is to say if individual companies like let's say Anthropic, you know, says tomorrow, you know, we want to let other people into this public benefit trust kind of arrangement, and it really needs to be you know, a multiple company oversight Institution, our experience tells us that that's not gonna work, right?

So, if that's the model, then you're gonna need one per company, right? Which isn't great, right? So in an ideal world, you know, much as I hate criticizing my own institution, if the Oversight Board were starting today, it would not be solely Meta-funded. Like, everyone would pay into it, understanding that the Rohingya crisis analogs are gonna be spreading all over, you know, other platforms as well, right? And then it would represent many platforms.

Even then, I don't think it should be one body because I don't think, right, you know, one body should have that much authority or power, and there should be some give and take and bricolage. And of course, you know, I didn't say this earlier, but I'm a firm believer to one of the questions that you put to me in, in, in your brief, that self-governance and, you know, regulation are not mutually exclusive. Like, I, I absolutely believe that we're operating in the shadow of the law and that regulation is ultimately gonna need to be a huge, you know, factor, right, in the regulation of AI.

Kevin Frazier: Right, and I think highlighting also that there is some degree of self-governance that's already underway in the AI space. So we've had OpenAI's model spec, Claude's constitution as these documents that attempt to identify red lines for their models as well, as well as values to embed within these models. When you go and talk to the folks who were charged with drafting those documents, though, they'll admit, "Hey, you know, it was a pretty insular group in a pretty ad hoc fashion that went about developing these safeguards." And as you've flagged also, there's a bit of an awkward moment when you're charged with interpreting the own rules that Meta has promulgated and the community standards that they've promulgated.

And so, when we actually analyze to what extent is self-governance right now doing its job, I think that's a key question we have to grapple with because when folks hear Claude's constitution or model spec, they think, "Oh, wow, they're doing it. They're doing the thing. This is great. We're seeing action be taken." And one model that Kate and I were discussing was this idea of the long-term benefit trust, which all of the sudden is hotter than Kool-Aid here in Austin. And so I know we wanna explore that further, and Kate, I know you had some particular ideas to dive into with respect to LTBTs.

Kate Klonick: Yeah. So, Kenji, I kind of wanna supposition something and just see what you think of it, 'cause as a con law professor, as someone who's been on the Oversight Board, but there's this huge difference in my mind between platform governance and things like the Oversight Board, and even the metaphor that permeated the setup of the Oversight Board, which was the C- which was like these, the Supreme Court. And the longterm benefit trust, which is this idea that Anthropic set up in like late 2023 that was essentially, you know, it was a, I'm not gonna get into the details of it, but there was a stage, There were different types of people that were appointed from different types of places to be on their board with the idea that you would kind of like hold them to this public benefit type of idea, and it would be at the corporate governance level. So it would be at this level of where the money was being made, and so they would have kind of this like very kind of real power.

Now, what's really fascinating to me is that AI is kind of gravitating to this language around constitutions and corporate governance, whereas like Meta gravitated to kind of this very rights-based framework, and they're slightly different. And one is because, like, you know, you're really talking about like the users and user voice, and like that type of idea in a platform governance set- setting like the one that the Oversight Board does. But the longterm benefit trusts, the idea of governance at the A level isn't really about like your right to speak on a platform, right? Or your right to be heard or your right to be listened to. It's really truly kind of about the safety of humanity. It's about kind of people having, you know, this is, it's a much kind of more holistic, existential question.

And so it's kind of interesting to me, and I wonder if you have thought much about the fact that like there is this, there is this, you know, uptake in this idea that's more corporate governance based than it is kind of traditionally, you know, rights-based or things like that, and if there's room for both in the AI context, or you think that it's correctly based in the corporate governance the corporate governance kind of stature.

Kenji Yoshino: Yeah. Again, thank you for that. So I think there's definitely room for both, and in fact, the pieces of the oversight board model that I think are most transferable to the AI context are the three governance principles that I was talking to Kevin about. So I really view those points not to be about individual rights, but much more to be about what structure of governance would we need to assure that we get good outcomes. So that's sort of thought number two number one.

Thought number two is, I really don't like the sponginess of individual rights or ethics or the like. And the one thing that I have really loved about the Oversight Board is that we hang our hat on international human rights law. So I would like the rights piece of this to not just be as Kevin was saying, like a cloistered group of philosophers talk, I mean, it's, it's wonderful. You know, I have a, a STEM kid and a humanities kid, so I'm like delighted for my humanities kid that philosophy is like the most employable major now apparently in, in the world. But I'm kidding, of course. But I don't think it's a good idea for people to leave it at the level of ethics because it's too subjective and it's too insular.

Whereas when we look at international human rights law that is a diverse global body of law that we have iteratively constructed over decades and feels much more stable and much more like a common language of rights that we could all have. I think both are gonna be critically necessary, and if we're tilted too much over one way, then we're in trouble.

And I can't resist, I mean, the con law guy in me says, you know, agrees with my colleague Rick Hills and, and many others that and I'm sure, well, I suspect you tell me, Kate, that you would agree with this too, that, you know, even though we divide constitutional law into structure and rights, those two pieces are so intricated with each other that they're really impossible to talk about in a sophisticated way without, it's impossible to talk about one in a sophisticated way without talking about the other, right? So like I always say to my, my students like, "Well, then who protects your rights?" You know, because if it's the courts, it's one thing. If it's Congress, then we have a separate provision of the Constitution, you know, Section 5 of the 14th Amendment that guarantees equal protection rights and et cetera, et cetera. So the structural pieces and the rights pieces are always already kind of intertwined with each other in a way that makes me a, a little bit, you know, nervous or allergic to conversations that say, "Is this a rights problem or is this a structural problem?" It's always gonna be both.

Kate Klonick: Yeah, so I, I kind of wanna just follow up on that really quickly, which is such an, which I, I would put it slightly differently. I would be like, I would kind of be like it's an enforcement question. It's a question of how exactly, whether structural or rights-based the structure might dictate who is doing the enforcement or how it kind of takes place, but the actual enforcement of these types of things is a huge part of this. And one of the interesting things is, like we were talking about at the very head of the show, that Kevin asked, set up these questions about the binding nature and this question of how impactful these kinds of recommendations are. But one of the things that I'm super interested in is the, of course, the corporate governance structure of the long-term benefit trust.

You know, we watched with the, the blip, basically, as they call it, the moment when Sam Altman la- was fired and then was brought back from like the trust and like the entire board turned over and there was all of these types of things, these questions of kind of like how really can a public boar- benefit corporation be enforced?

And if this, if you, this was exactly the moment that like the trustees thought that he was deferring from the public benefit, and so they fired him. And so then there's a riot of like kind of the, the employees, and then he comes back. I, I really do wonder, like, what is so much better about the long-term benefit trust in your mind than just any type of public benefit corporation or any type of corporate board that has to in some way kind of balance shareholder rights in some type of capacity, is, you know, even if it's just kind of written on paper.

Kenji Yoshino: Yeah. I, I, I mean, I, I wanna be cautious here because I really respect Anthropic, but I, I have the same hesitation, which is we were talking about sort of open source code. I would really like open source governance . And the fact that the public benefit trust documents are not publicly available is really alarming to me, right? So the Oversight Board does, you know, publish all of its charters and, you know, underlying documents for anyone to see. And so the fact that this public benefit trust is being governed by principles that we ourselves are not privy to kind of violates my transparency norm, and so it, it puts up some of my antennas.

All that said, you know, Kate, I mean, maybe I'll turn this back to, to both of you. I mean, to me, the question is always not “is the Oversight Board perfect?” Or is this “Benefit Trust perfect?” Because of course we're not, and they're not, and no one ever will be. It's really a “compared to what” question, and I want, I wanna take that seriously. I don't wanna say, "And that disposes of everything," because of course it's better that the Oversight Board exists than that it not. Because one could say, "Oh, well, the fact that the Oversight Board exists gives Meta more credibility than it should, and it protects it from regulation." I've seen no evidence of that. I've seen no evidence that the existence of the Oversight Board has performed any kind of shi- heat shield function for Meta. I've seen no evidence that it has slowed, you know, you know, the DSA from going online or other attempts to regulate social media. I don't think the existence of individual regulation is going to prevent these lawmakers from stepping in and saying there's certain problems that only we have 'cause they're collective action race to the bottom type problems that only we have the authority to stamp out. And so it's just an institutional competence issue.

But, you know, at the risk of oversimplifying, right, I do think that if the question is “compared to what?” Then the issue would be, is the Oversight Board better than regulation. And then the million dollar question is, are we preempting or even slowing down regulation? And the answer to me seems to be to be an emphatic no. So that seems like a false choice. And so then it really does become is the Oversight Board better for existing and dealing with the cases? And, you know, we only have like a keyhole into Meta's operations, but that is way more than anyone else in the world outside of Meta has, right? So if we're using that in order to, you know, shove our human rights values through there to mix some metaphors how can that be a bad thing, right, compared to it not existing at all?

Kevin Frazier: And that's why I think your metaphor for open source governance is so compelling and is particularly true with respect to AI because it's not only speech, but it's the economy, and it's our culture, and it's our politics, and it's the concentration of power, and it's all of these things. And so a sort of governance in layers has to be the solution where we're thinking about novel checks and balances.

But one other thing I wanted to call out with respect to the Long-Term Benefit Trust and similar models that I would just encourage listeners to dive into whenever these things get released is, number one, transparency, as you pointed out. If labs are complaining that a voluntary framework by the administration is clandestine and being kept secret from public observation, transparency on their part is welcome, and they are free to share as much information as they'd like. My radical own take is that I think labs should publish their org charts and show their decision workflows before reaching major decisions. That to me seems like basic common sense transparency that is necessary in this context.

But one other thing that you and Ronaldo point out is that the trustees on the, quote, "long term," and I'm doing scare quotes for those who aren't listening or watching, the Long-Term Benefit Trust has trustees that only serve one-year terms. And if you're only serving a one-year term, that is a short-term incentive structure, right, where you're just thinking about decisions you can make here and now versus incentivizing that longer-term perspective.

And something that I wanna touch base with you as well is how we're actually going to incorporate future impacts of AI on communities that aren't even using AI yet, right? You can go and you can look at where is AI actually adopted, and there are whole communities the world over that have incredible numbers of young people who are going to be the majority of AI users in the future, and yet our governing institutions rarely look like them. But when it comes to making sure that we are scrutinizing these self-governance mechanisms, I think we have to really go back to those incentive structures. And so long as those incentive structures don't inline with what we expect that governing institution to accomplish, I think it's some degree of governance theater in some aspects.

Kenji Yoshino: Yeah. Again, you know, hard agree with that, you know. Except for one, one caveat which actually stunned me, which is that I looked at a university study that said, like, 30% of undergraduates don't use AI, and it was for environmental reasons largely of saying, you know, every time you use it, you kill a tree, and so we're just gonna be socially responsible, which made me think, wow. So this idea that, you know, younger generations will inevitably have greater uptake of AI, I think is largely true, right? But I just wanted to so that I don't seem like too much of like a, a softball guest here, you know, enter that, that point of, of caution or disagreement.

But like I otherwise I, I entirely agree with you, which is to say, you know, these governance issues are they're really core issues. And so if you have individuals who aren't affected, are affected by AI but aren't at the table, right? You know, the, I just recently heard an AI speaker, you know, come in and say, you know, "If you're not at the table, you're on the menu, so watch out," right? And so I do think that there's a lot of that.

I think one thing I would throw back though is to say that, you know, I think we're having a kind of, and putting on my law professor hat now, I think we're having the law of the horse debate all over again. So Frank Easterbrook famously said about the internet, not about AI, that we don't need a law of the internet any more than we need a “law of the horse.” You both, of course, know this. And he said, you know, if it's, you know, if you're selling a horse, then the law of contract will govern it. If you've been trampled by a horse, then, you know, the law of tort will cover it. And so, you know, basically this new thing can actually be absorbed by different principles.

And I think that's actually a, a, a kind of heartening point, right? Which is to say I work in civil rights law, so this is a place where I'm most knowledgeable where I look at the huge effects of inequality that AI could have because every Fortune five hundred company that I know of is using AI in hiring, promotion, recruitment, advancement, you know, et cetera, et cetera, like Eightfold or Workday or, or what have you.

But disparate impact law is actually very good at screening this kind of stuff out. So you could have these case decisions like the Walters case that say like AI doesn't have any kind of intent, at least in the case of defamation, right? That's state court in Georgia so, you know, take that with a grain of salt. But disparate impact doesn't require any kind of intent. And so if you have a Workday or Eightfold and it disproportionately weeds out people with disabilities 'cause, say, you don't make eye contact enough in your video AI interview or age, right? Because it has these, you know, correlations that it's developed through its training data about age and competency or race or gender or the like, then you're gonna get nailed on disparate impact grounds, right?

So, the, the one area, so, and, and there's a case as, again, I'm sure many of your listeners know, called Mobley in, v. Workday in the Northern District of California, which everybody's watching very, very carefully to see whether or not the law, law of the horse premise of we don't need a law of the horse because we have disparate impact will play out. So that's one thing that could protect us.

But going back to your side of the ledger, Kevin, I was at a faculty workshop, and I'll, I'll just name her because I think she would stand by this and would be, and should be proud of this comment. But Cathy Strandberg, who works on privacy issues, said the one place where I, I think we do kind of need a law of the horse is privacy, right? Because the extant kind of privacy laws just didn't understand the kind of scale and the intrusiveness, right, that AI could engage in by, you know, scraping our data and, you know, doing the mosaic thing of putting together a portrait of us.

And one of the most fascinating lawsuits in this domain is the FICRA lawsuit, which I think is less well understood than the discrimination Title VII-type lawsuits, where Outten & Gold and Jenny Yang, the former EEOC commissioner, is bringing this, and she's saying, "If you're scraping my data to create a profile as to whether I'm employable, and you don't give me a chance to rebut that when you've collected it from things that are not easily and publicly available, like, say, my credit score, then the Fair Credit Reporting Act, you know, structures apply, and so therefore you could be liable on that basis as well."

So, you know, that's an interesting, I'm watching that case really closely as well to see whether or not it can secure us some gains at privacy. But I'm with Strandberg, Professor Strandberg, intuitively in thinking that privacy might be the one domain that's different from my neck of the woods, which is equality.

Kevin Frazier: Yeah, and I think what is really going to be a question for us to answer on this law of the horse inquiry is the extent to which AI's technical elements s- expose more fields than just privacy as things that require updates. Because one of my grave concerns right now is you can go to SF, and you can hear people using terms, talking about “spinning up agents,” raising their hand that they have one hundred agents working on their behalf, and using lingo that the rest of the country would not understand.

And what I worry is that too much governance being concentrated in one community or one geographic community is going to leave everyone else who used to be able to enforce the law of the horse, for example, stranded. And so if we don't have that sort of epistemic understanding being distributed enough across folks who can hold truth to power and contest decisions that are being made, well, then that's really where you run into some governance challenges.

And so I know, Kenji, you're studying these issues. Kate, you're studying these issues. I've got to get back to writing and have some students to go teach about this law of the horse and AI and all that jazz. So Kenji, unfortunately, we're gonna have to leave it there, but this was so much fun having you on. Thank you for joining and walking through your excellent Tech Policy Press article.

Kenji Yoshino: Oh, it was a joy to be with you. Thank you so much for having me.

[Outro]

Kevin Frazier: Scaling Laws is a joint production of Lawfare and the University of Texas School of Law. You can get an ad-free version of this and other Lawfare podcasts by becoming a material subscriber at our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Check out our written work at lawfaremedia.org. You can also follow us on X and Bluesky. This podcast was edited by Noam Osband of Goat Rodeo. Our music is from Alibi. As always, thanks for listening.

[Intro]

Michael Feinberg: They're the ones who actually have the most they can say and can shine the brightest light on what's happening, but they're working for companies that have explicitly told them or implicitly suggested that under no circumstances are they to do so.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare, with public service fellow Julia Curlee and senior editor Mike Feinberg.

Julia Curlee: But at the end of the day, you know, people have families, they have mortgages, they've got to send their kids to college. No one else is gonna do that for them, and so it is fully understandable why people would not speak, and, and that's what we're trying to describe, this incentive system and the punishment system on the other side of that.

Benjamin Wittes: We're talking censorship, not the kind where the government tells you that you're not allowed to say something, just the kind where you already know you're not allowed to say it. Why aren't more former intelligence community figures and FBI agents speaking out? We're gonna tell you why.

[Main Podcast]

So Julia, I want to start with just having you articulate the issue that led you to write this piece. We're gonna get into all the details and all, all the things that you argue in it, but why, why did you sit down to write this piece in the first place?

Julia Curlee: So the, there's this idea that everyone knows but no one is speaking, and it's a phenomena that I spent a career studying at the CIA about foreign countries that I suddenly found applied to my own life, where the things I overheard at the Langley Starbucks that everyone took as a matter of faith, God, everyone knows, no one was saying out loud in public. And having gotten to, to, to experience it firsthand, where having been purged from the White House, looking for work on the outside, I went through all of the categories that you'll find in this, in this piece of attempting to land on my feet and move on with my life and finding that, that all the doors were sealed unless one condition was met, which was that I kept my mouth shut.

And so, I wanted to find a way of articulating that, and of course, having landed in one of the few places where it is possible to write in public, and, and the latest in a storied line of individuals that are similar to me, I felt like it was important to put this down and to get the word out on this, on this point, and then to point toward things that we might do to make dissent, to make speaking more survivable for people like us.

Benjamin Wittes: All right. So we're gonna talk about the Public Service Fellowship, which you talk about in the piece, a little bit later. But let's start with some basic numbers. How many people, first Julia and then Mike, who had jobs in the general vicinity of yours are in a position to speak publicly now and have done it?

Julia Curlee: I think there's a time element. So there are people in the intelligence community from many years ago who have spoken, and I've, I've, I've been with them on podcasts.

Benjamin Wittes: Right. But I don't mean people, I don't mean the world of formers.

Julia Curlee: Right. Right.

Benjamin Wittes: I mean people who come out of government under some form of duress, whether it's because they've been fired or because they've been, it's been made clear to them that there's no future for their careers, or because, like in Mike's case, you know, he has the wrong friends and they've found out about it and they've made clear that either you're gonna resign or you're gonna go through an internal hell. I, I mean, there's some-

Julia Curlee: Yeah.

Benjamin Wittes: Kind of duress in the last two years and who've come out and have spoken publicly about it.

Julia Curlee: Yeah. So if you just look at, in the intelligence community for CIA, DNI, DIA, as far as I'm aware of the people who've left in the second Trump administration it's me. And I don't know if that's true. I would love to believe it's not true, but I have not found anyone who was in a similar position as myself and who has been able to both land on the outside and speak publicly about their experience.

Benjamin Wittes: And Mike, what about you? How many, we have a, there's a sense that lots of FBI people have spoken, but that's partly because Jim Comey is a famous public figure, and because Andy McCabe has, right? There's this whole line of people over the last 10 years who've come out and who have spoken. But what about the, in the universe of people who, like you, have, you know, lost their jobs and careers either directly or indirectly in the second Trump administration, how many have spoken publicly?

Michael Feinberg: In terms of specific individuals who have spoken in the way to which you're referring, interviews, podcasts, specifically about their own situation, I can think of offhand four, not including myself. Then there is one more individual who spoke about it in, two individuals who spoke about it in the context of political campaigns when they were running for Congress in primaries. And then there's a group of individuals that spoke out in a New York Times narrative history piece and a group of individuals who spoke out in a Justice Connection video announcement. Now, those last two groups probably share 75, if not more, percent of the same membership. But when you consider that we are well into the dozens, if not hundreds, of individuals who have either been fired, voluntarily prematurely curtailed their careers under threat of being fired, or left earlier than they had ever planned to simply because of the overall environment, it's not a high percentage.

Benjamin Wittes: And Julia, what would you estimate? M- Mike estimates the number is, for the FBI, between dozens and hundreds. What would you estimate in the larger, in the larger intelligence community, how many people are we talking about?

Julia Curlee: If we're talking about people that were, like, by name fired because of their association or, or purged because of who they are, it's, it's a really small number actually. But if we're ta- if you, if you open the aperture a little bit about the, the broader workplace cuts, whether we're talking about, like, State Department INR people or DNI, where hundreds of people have been laid off for, for no reason other than just a, a vague sense that there's a deep state enemy within in these performative cuts for the White House. I mean, I think it's in the hundreds, but, but it's kind of a different, it depends on what you're talking about.

But even among those people who were not by name fired for their imagined offenses, precious few of them have also not spoken out because of the same dynamic that we describe in the piece about the extreme difficulty of finding work in the Washington area, in a company town, with an administration that is willing to jerk your clearance with a phone call and render you unemployable in your own profession.

Benjamin Wittes: All right, so let's, with that as a setup, and you've now given away what the subject of this conversation is, Julia, let's talk about the atmosphere and let's talk about why people aren't talking. So sketch it out for us. You have “Person X” who's been either individually targeted, maybe named in an executive order as having their security clearance stripped, or just is part of this large DOGE’d community or rift community that Bill Pulte is cheerfully creating. And is angry about it, and knows it's wrong, and feels targeted by it, and yet there is an incentive structure that is making you guys unusual in being willing to sit in front of a camera and have a conversation with me. Describe what is creating that dynamic.

Julia Curlee: So, I think it is a, a few things. You know, one, and, and maybe chronologically dealing with the phenomenon is right. So the administration is, is led by people who during the, the Biden administration, nursing their wounds from the first Trump administration, became convinced that there was a deep state enemy within that had a lot, you know, lay in wait for the president, and had a plan, if they got back into office, to go after their political enemies. And so from day one alone, they, they discovered that among other things, the clearance is an, an, a powerful weapon to personally target individuals you deem to be opponents of the administration, and materially damage their lives.

And so I, I was sitting in the White House as a in- a director for intelligence programs on the first day of the administration when I find out in the press the dozens of names of people who have now lost their security clearances via executive order and, and announced via tweet. No review, no process. They clearly came in with a list of names that they were gonna go after. And that was the first thing that sent shock waves through the federal workforce, sending notice that we will reach back in time. These were, these were alleged offenses that either had something to do with the 2020 election or the 2016 election. We will go back almost a decade, find your alleged crimes, and then we will strip you of your key fact ability to earn a living. And everybody saw it. There was no appeal, certainly not at the time.

And lots of people who had their clearances stripped had other material reasons to not contest what had happened to them in public. What remained of their employability, and I, I know many of these people personally, and I won't, I won't talk about their individual circumstances, they're still, even if they lost their clearance, they're still working in a company town where ultimately the largest employer is the federal government, the largest source of contract money is the federal government, and if you're now relying on that income stream, even if it isn't classified, to pay your mortgage, send your kids to college, or, or in some cases you might have your own family members still left in the government who could be punished, you're going to be quiet. And they did.

And so the phenomenon has been that there were a series of retaliatory moves early in the administration and, and they've continued occasionally. But for the most part, the message was sent and what we're describing in the piece is self-censorship. And it's what you're not seeing. It's the piece that never gets written rather than the, you know, the individual who's, you know, voice just, you know, who, who, it's self-censorship is what I'm trying to say.

Benjamin Wittes: Yeah, so Mike, how, how much of it in the FBI is a security clearance thing?

Michael Feinberg: So this is where it gets a little bit interesting specifically for the FBI. This was a trend I noticed actually in the waning days of the Biden administration in that when individuals would get what we called “OPR'd,” which is you become the subject of an internal violation of some sort of rule or law. And when they'd get investigated and the administrative penalty was not as stringent as it seemed the seventh floor, the leadership of the FBI, would've liked, we started to see a lot of times them taking a second bite at the apple by, once the OPR was finished, having the security division do an entirely separate review of whether it was appropriate for the person to hold onto their clearance.

And what happened to, I'm not gonna say a lot of people, but to at least some, is individuals who thought they had cleared the barrier of the internal investigation and while they got some form of punishment, they knew they would keep their jobs, would find all of a sudden that they were in some form of double jeopardy.

Benjamin Wittes: Because what hadn't been done in the OPR investigation was being done in the context of their clearances.

Michael Feinberg: Correct. And I think this was really shortsighted by Bureau leadership because it was the very sort of thing that a less principled administration could leverage to its advantage going forward. And where it might have been a rarity under Wray and Biden, I suspect it's becoming much more something regularly happening at the Bureau now.

Julia Curlee: I would add in this administration we also had the, the new phenomena of the DNI getting involved in other department and agency's personnel decisions in a way that, that seemed very unprecedented. And whether that was the purging of CIA officers on rotation to the DNI, as in the case of the National Intelligence Council and the Tren de Aragua assessment, or whether that is CIA officers who had been participating in assessments 10 years before in the, the Russia 2016 assessment. The DNI not only reaching, you know, in to, to strip people of their clearances, but the CIA leadership itself not standing up to block the DNI from interfering and, from a CIA's perspective, in basic personnel decisions in the agency.

And so instead of, if there was an issue with these individuals and their analytic work in the past, which there was not, but if there had been, there would've been some review process. They would've been parked in some administrative location for, for further adjudication and, and then they would've gone through some sort of basic process. And none of that happened. Instead, the, the people I'm referring to were walked out of the building in a way that everyone else could see in, in a, in a public act of retribution.

And because these people were, were some of our best officers who had been deeply admired and, and were close enough to the rest of the workforce, the people knew their names, you really sent a chilling message through the workforce that no one was safe and the leadership of the organization would do nothing to help you.

Michael Feinberg: Yeah, if I could add something to Julia's statement just now. There's two interesting dynamics at play here. The first is the DNI is able to do this because, for really the first time in U.S. history that I'm aware of, department heads are not what I would term as dual-hatted in terms of loyalty. Previous cabinet officials and agency heads, at least in the post-war modern era, have always had a certain amount of fealty to the president who appoints them, but at the same time, they realize they have to thread the needle and defend the turf and personnel of their own fiefdom. Otherwise, they're not gonna be effective there. It's not necessarily because they're altruistic or good leaders. It's self-interest to protect your people, 'cause ultimately you need them to make you look good. That's gone. The current leadership of the IC does not care one whit what the workforce thinks of them, and as a result, they're solely looking out for the administration writ large.

And Julia's comments about the DNI pulling clearances explains what I think is a very clear difference between the FBI and the rest of the IC. The FBI has to still operate in public to a degree that other intel agencies do not, and as a result Kash Patel, Dan Bongino, Andrew Bailey, Chris Wray, whoever's making the decisions at any given time, they can come up with a public justification and say it's for investigative deficiency on matters X, Y, and Z, with X, Y, and Z coincidentally always relating to some previous investigation of Trump.

You can't out a case officer by talking about a recruitment in place they ran in a hostile territory. If you're gonna get rid of them and you want to do it in a way that sends a message, it has to be based on something that does not implicate their still-secret work. So that's where I think the security clearance process becomes a very handy tool to enact a purge of the workforce.

Julia Curlee: There were a couple other, so w- w- basically what Mike and I have been mostly describing is the direct purge or the, the shock that's sent to the workforce within the current workforce so that the, th- that workforce doesn't speak or doesn't go j- use its whs- whistleblower channels.

So there's a couple other in this category that are probably worth mentioning quickly. Not as much to the intelligence community, but the overwhelming of what few appeal places th- there are for federal employees with th- tens of thousands of, of, of people appealing in offices that have themselves been DOGEd and really no recourse being allowed to them, and the targeting of, of probationary officers who really have even fewer sources of recourse, and then last, this Schedule F-ing of the workforce. And so not as much at CIA, at least yet, but in other parts of the government, especially in DOD, you have individuals who have now had their positions been converted into this Schedule F, where they will be evaluated against, frankly, political criteria of whether they're implementing the president's policy agenda, which i- in an intelligence agency is, is really not what they should be doing.

But what it means for your workers beneath the GS-15 level is they may now have a boss or a boss's boss who is, in effect, a political appointee who had never been that way in the past. And the broader effect in chilling workplace speech or, or providing ideas that, that you know might not be welcomed by the administration, it is now penetrating much deeper into the workforce, which again adds to that censorship of people not willing to talk.

Benjamin Wittes: All right. Most people don't have much sense of the normal career path post-government of a CIA officer or an FBI agent. But the normal career path actually matters here because it sets the bounds of expectations. If you're, you have a mortgage, you're planning to send your kid to college at some point You know, up until January 2025, what is the normal expectation of somebody like you, Julia, and somebody like you, Mike, about what their career involves at the 20-year mark or 25-year mark? What is it that people are trying to protect when they keep their mouths shut and don't talk about their experiences and what they've seen?

Michael Feinberg: Could I push back against one of the assumptions baked into that question?

Benjamin Wittes: Yeah, absolutely.

Michael Feinberg: Because at least for the FBI alumni, there are a lot who want to speak out, and this gets at a lot of what Julia was implying in her earlier answers. There are a lot who want to speak out, but a condition of their private sector employment is that they do not.

Benjamin Wittes: Well, th- th- that's what I'm trying to get to. And, yeah, so, so what, what is this private sector employment that you work in the government for 20 years, you retire, and then you go work in the private sector where you're not allowed to speak?

Michael Feinberg: So within the FBI, I would basically say there are really three categories of post-Bureau paths. And I'm just gonna talk about special agents here, because otherwise we're gonna go down a lot of rabbit holes. So the first is, a lot of agents, if they are in an area of the country with a relatively manageable cost of living, do just retire. The pension can be enough, depending on your life circumstances, to give you what you need for the rest of your life.

There are other agents who want to continue working, who go on to do some sort of security consulting or investigative consulting in the private sector at a sort of worker bee level, or go work for another government agency. And I'm not using OGA as its usual obfuscating meaning for referring to CIA or the IC. What I mean is that, you know, the Department of Energy, for example, has a really robust counterintelligence portfolio. Health and Human Services or Housing and Urban Development have investigator roles. So people might just go work for another government agency as a contractor or as an employee and do what's called double-dipping, getting your pension while also continuing to work for the government at or remove as a contractor.

Then the third category, and I think this is what we're gonna have to end up focusing on for this question, are the senior executives who go on to do that sort of security consulting in the private sector but do so at something closer to the C-suite level.

Benjamin Wittes: Being the head of security at some private Fortune 500 company or a-

Michael Feinberg: Exactly. Yes.

Benjamin Wittes: Or some other company that has some kind of specialized, often international security needs.

Michael Feinberg: Exactly. Or you're a tech company and you have an insider threat program to prevent industrial espionage. And those companies, those Fortune 500 companies, inevitably do some degree of business with the government, and they are incredibly loathe to have any of their employees say anything that may get in the way of that relationship, particularly when you're dealing with as petty and vindictive an administration as this one.

So, the overwhelming majority of the senior executives who have been ousted from the FBI over the past year and a half, two years, are in that position. They're the ones who actually have the most they can say and can shine the brightest light on what's happening, but they're working for companies that have explicitly told them or implicitly suggested that under no circumstances are they to do so.

Benjamin Wittes: And they're making salaries that make that accommodation, it's a, it's a binary thing, right? You're getting 400, $500,000 a year.

Michael Feinberg: Maybe, or even, I mean, it could be even less, but you're getting something that is making your life more comfortable. There's different ways to characterize this, some neutrally, some flattering, and some critical.

Benjamin Wittes: No, just let, I, I don't, I just wanna characterize it factually. Yeah. There's an enormous incentive structure not to talk.

Michael Feinberg: Correct. And for the people who have actually retired and can talk, a lot of those people, if they weren't senior executives, don't have the training or the know-how to enable them to do so. In other words, they've never gotten media training, they've never interacted with the press, they haven't done any sort of public writing. So even if they wanted to speak out, it's not like they have the intuitive know-how or tools to do so.

Benjamin Wittes: And I would just add to that as somebody who has tried to help a number of such people communicate what they know, they don't always know what they know. You know?

Michael Feinberg: Correct.

Benjamin Wittes: There, there, there's an enormous amount that happens in a bureaucracy that the people who are directly involved with don't always know what part of it is highly salient to the public debate. And often what they think is highly salient is the gross manner in which they were treated, which sounds a lot like the gross manner in which 30 other people were treated. But the policy discussion that they were involved in is a really big deal, right? And they may not recognize that as readily as, say, somebody who's in the news business does.

Julia, how about you? What, what is your sense of, like, what does the median CIA officer have to protect in this conversation other than, you know, their dignity and whatnot.

Julia Curlee: Yeah, very similar to the story Mike was saying. You know, there are very few employers left, I think, in America where a person could actually imagine spending 40 or 50 years working for the same employer, and CIA is one of them, where you could join in, in, in your early 20s and you could do 15 different things, but at the end of the day, you're still a CIA officer until you reach retirement age. And that's, that's not common, but it it's, it's, it's, it happens more often than you think.

And so a person will usually do a full career at, at, in- into their prime at CIA that, that you know, it's, it's quite common to see folks leaving at, the early ones leaving with 20 years of experience, 30 years of experience, and then moving on in that prime of their life to a, a, a different lifestyle, you know, where they've traveled overseas quite a bit, they want to spend more time at home with their family, and so they'll take a position that leverages whether it's their security clearance or their, you know, foreign languages or their unique travel or contacts. If they're a Directorate of Analysis officer, they might find a position at a political risk firm working for a big defense company. If they're a case officer with extensive experience overseas, they might help a foreign government in many cases, or they'll work on international business. If they're a Science and Technology officer, they may have incredible technical skills that they can parlay to a tech company. And so it is quite normal for people to spend decades, but then also to look for a government adjacent position on the outside. And that, that has continued to be the natural place, even under this administration for, for folks to go.

But it's also happening in this environment where thousands of people like you have now also been dumped onto the job market, exacerbating the few positions that, that might be there, and this, exactly what Mike said, that the, the willingness of private firms to tolerate political speech by their employees, even going out under a separate banner. I mean, I, I know folks that have joined private companies but also have a non-resident fellowship at a, at a, at, at a think tank or some other o- outlet where they have been basically forbidden from publishing anything in their own names through those outlets. And so there is great deal of fear that speaking or doing anything like what, what Mike and I are doing now will cut off the, the, the primary normal exit plan for a person like us.

Benjamin Wittes: And they're right.

Julia Curlee: Right. Right? They're absolutely right.

Benjamin Wittes: I mean, the, the point here is not that they're wrong and all these people are just gutless. The point is that they're actually correct and that what we're talking about is a massive bureaucracy-wide incentive structure.

Julia Curlee: Right, and I would, I would contrast that, but we end up in the same place. But, you know, in my case, I've talked about it with you that, you know, I, when, when I was “Loomered,” if you, if you knew I was Loomered, you didn't wanna hire me because you didn't wanna be associated with that. If you didn't know I was Loomered, you, you didn't know, you, you didn't know enough about me to hire me.

Most people are not in that position. Most people, it's just simply the work has become intolerable. There are other opportunities on the outside they would prefer to take, but the same censorship would apply to them with their, with their onward employer not being willing to let them speak what they know or express their views.

Michael Feinberg: Yeah, Ben, I think you and I discussed this in the first podcast we ever did together, after I published the story with Lawfare of my resignation, 'cause I made the remark, just that one article, those five pages pretty much precluded me from ever getting a private sector security consulting job. And normally, y- you know, I'm not saying this to puff myself up, I'd be a good candidate. I have-

Benjamin Wittes: Well, no, no, let me, let me-

Michael Feinberg: Yeah.

Benjamin Wittes: Let me amplify that a little bit.

Michael Feinberg: Yeah.

Benjamin Wittes: You are the prototype of a highly specialized type of expertise. You have a background in counterintelligence. You speak Mandarin. You have hands-on involvement in a whole bunch of, I'm not saying anything that isn't public-

Michael Feinberg: Yeah.

Benjamin Wittes: Investigations of companies like Huawei. I, I, you know, y- you're the, you're the sort of picture of the kind of person who can leave government and have a lucrative career in saying, and whene- whenever you're asked what you do, you say something like, "I do some consulting." And-

Michael Feinberg: Yeah.

Benjamin Wittes: What that means is people drawing on that precise certain skill set.

Michael Feinberg: But, you know, there, there's a cost, and I, I think when I first took the public fellowship, we talked about this. Like, going down this route meant that that world is now closed off to me. And not just for the length of this administration, because there's always gonna be the concern in four or eight or 12 years, does a similarly minded administration comes back?

Benjamin Wittes: And also, is Mike, Mike Feinberg's the kinda guy who talks, right? There's a, there's a, there's another side of that which is, has more to do with a culture that does not value being public.

Michael Feinberg: Yeah, I don't think that Facebook would want to hire as a security consultant somebody who they think might write the spiritual sequel to “Careless People.” So, once you go out in the world and do this, you are not just foreclosing an immediate opportunity for this administration, you are foreclosing opportunities for frankly the rest of your life. And that's, you know, I'm usually very harshly critical of people who don't speak out, but, I under- that's something a lot of people cannot afford to give away, literally or figuratively.

Julia Curlee: Yeah, I think that I want to also jump in on this point that, you know, it could be perceived that what we're talking about is a criticism of, of people, and I wish more people did speak out. But at the end of the day, you know, people have families, they have mortgages, they've got to send their kids to college. No one else is going to do that for them. And so, it is fully understandable why people would not speak, and, and that's what we're trying to describe, this incentive system and the punishment system on the other side of that.

And in, in my case, and I think probably a bit in, in Michael, I don't want to speak for you, they've already taken away most of what I had to lose. And so, they, they in some ways have made it easier for a person like me to, to make that decision. In the, in the unique case of a transgender person, I can't use the bathroom in federal office buildings. My passport would be, would, was revoked and, and would be turned male. Like my CIA career was over and my ability to then work back with the agency in a classified position where I'd be in the same restrictions that I face on the outside, it was done.

And so having lost already the most important thing that they could have taken, they, they made it a bit easier for me in that, in that way. And if you are not a person who's been individually targeted and you do have a family you have to take care of, it's understandable how people end up where they are. It's just this collective action problem where everyone is making that same decision, and then you end up with just a handful of us who are able or willing to speak.

Benjamin Wittes: Yeah. So in the article, you identify three exit paths that are significant here. We've talked about two of them, which is, you know, if you talk, you can't stay in government, and if you talk, you can't go to the private sector, at least not in a capacity that could draw attention about what you talked about to the company in question.

But let's talk about the third, which is, in some ways, the highest profile of them, which is, you know, you go to some do-goody civil society organization. You know, and of course, there are famous examples of this, including, I don't know, Erez Reuveni, the whistleblower on Emil Bove's misconduct, is now working for one of the litigating groups that challenges administration policy. So are, so are several of the w- at least one of the Jack Smith prosecutors. So some of, this, this, this option solves some problems for some people. Why is it not a bigger part of the solution to the larger and problem that you've identified?

Julia Curlee: A lot of it is the funding base. I had had quite a naive conception that think tanks were places that people went to think between administrations, and they, they believed in speaking truth to power and, and following the ideas where they took them. But what I quickly disc- I know, I know it sounds so naive now.

Benjamin Wittes: Ha, ha, ha. How silly of you, Julia.

Julia Curlee: Silly of me now. I, I discovered very quickly this phenomena that, that perhaps they were even more risk-averse than, than private companies because of how razor thin their operating budgets are, and that many D.C. area think tanks operate on federal grants or, or they have federal officers who are seconded to them, military people that, that do fellowships that are very well, you know, that are paid for and help subsidize the rest of the organization. And if you get on the list that your organization is, is sponsoring the wrong kind of speech, you could, you could find yourself stripped of, of your people that have been paid for, that, that are paying the bills. You, you could have your funding base taken care of.

And also the funders themselves are scared because of, for, for a number of reasons. One, the administration, in its early days, directed the IRS to do investigations of, of ensuring that, that no tax-exempt entity would indirectly or directly finance, and then they named the kinds of speech that they didn't want financed, and that had a chilling effect. My understanding is that not a lot of that has actually materialized, but it did deter the donors, who then deter the, then prevent the, the fellowships that those of us who would want to speak would land in, and it made them very, very risk-averse.

And so I had this experience as, as you and I have talked about of, of looking for work, first in the private sector and also in the, in the think tank world for, for-

Benjamin Wittes: Yeah, so give us the numbers on that.

Julia Curlee: Yeah. Sure.

Benjamin Wittes: You were sitting for the better part of a year applying for jobs You were the freaking senior director for intelligence at the NSC. You're, that's, like, for Washington, th- that's a big deal job. What did your job search look like?

Julia Curlee: Well, in, in nine months of applying for probably over 100 jobs, I did not get a single interview. Not one. Me, it just, whether that was based on,

Benjamin Wittes: Are you sure it's because you don't know how to write a good resume, Julia?

Julia Curlee: It's probably not that.

Benjamin Wittes: Just checking,  'cause I, I just, I wonder if there's something wrong with your resume, or maybe your cover letter n- needs fewer commas in it.

Michael Feinberg: It's, it's not that. She types in Comic Sans.

Julia Curlee: It's true.

Michael Feinberg: Yeah.

Julia Curlee: I mean, in, in fairness, I w- I, I was not advertising the the fact that I wanted to be able to speak publicly, but that was always going to be something that I was going to do, and that eventually would've circumscribed my ability to, to take jobs or, or deterred employers, but we didn't even get that far. I didn't get, I didn't get called for an interview based on what I understood to be just widespread knowledge of the fact of what happened to me and that a person like me would also draw fire or just risk raising the ire-

Benjamin Wittes: And by a person like you-

Julia Curlee: Yeah.

Benjamin Wittes: Do you mean a trans person, or do you mean a person who was subject to the purge?

Julia Curlee: Both.

Benjamin Wittes: Or both?

Julia Curlee: Yeah, both. Both. And, and many of these, these places were themselves rolling back DEI programs, which, in effect, were rolling back programs to ensure they had a workforce that, that looked like America or recruited people in, in diverse areas of the country. And, and so adding a recently purged trans person to their, to their numbers probably was not a high priority for most D.C. area think tanks or, or private businesses.

Benjamin Wittes: So Mike, you did not have a similar experience because your departure was very sudden and you came directly to us. But is your perception that Julia's experience is relatively typical in the sense that you have these, a large number of former FBI special agents or, or senior executives who are suddenly on the market and are flooding the world with unreciprocated resumes?

Michael Feinberg: Most of the FBI executives I know who've been pushed out and wanted to get something have found something, but it has been entirely dependent upon personal connections they built during what was an almost full career. So, you know, I'm not gonna name specific employers, but there are Fortune 500 companies that, by necessity, deal with the FBI or DOJ on a regular basis. Inevitably, sometimes people from each organization hit it off with each other, and you might be able to leverage that into a job after you finish.

But let's be clear, the corporations are almost all explicit to the people they hire that like, "We understand you have strong feelings. You're not gonna speak about them. You are a private citizen. You have nothing to offer the world of discourse from our perspective, and one of the conditions of this job is that you don't vent your spleen." And I know this because I've been explicitly told it. I've taken part in a number of public accountings of what has been going on at the Bureau for the past two years, and for every person I convince to take part, there are a half dozen who refuse explicitly for the reason they don't wanna offend their employer.

And I'm gonna be a little bit harsher than Julia was just now in one regard. She referred to corporate risk aversion. There's another word for risk aversion, and, and, and that word is cowardice. You know, there is not a single Fortune 500 company whose prosperity has not been made possible except for the rule of law in this country and the free market and discourse of ideas that we have. To now turn a blind eye to the shifts that are undermining that environment is fundamentally to pull up the bridge behind you so future generations don't have the same opportunity solely so you can maximize your immediate profits.

Benjamin Wittes: So I will just add to that with respect to the think tank culture that Julia refers to. There's an additional factor that is not the administration, but is the congressional atmosphere. You know, I think if it were just the administration thinking about people's, organizations' tax-exempt status, that would be one thing. But it is also the possibility that, I mean, there was a think tank based at Stanford that did, that our colleague Renee DiResta was one of the principals of, you know, the internet re- the Stanford Internet Observatory. And, you know, that was destroyed by a series of state AGs and congressional investigations that concocted a bullshit theory about them and has pressed it against the entity and the individuals ever since.

And so, I, I mean, the think tanks are not wrong to think about their risk profile in this environment, and yet unlike the for-profit organizations, they have on a supposed public service mission. And so, you know, I'm a little bit more forgiving of the people whose, frankly, whose duties are to their shareholders and who, you know, who have fiduciary obligations to maximize shareholder value than I am to organizations that supposedly stand for truth and justice and the American way and, you know, are too afraid of, you know, the Devin Nunes-s and Jim Jordan-s of the world.

Michael Feinberg: I mean, it is interesting that you're positing there is a difference between the executive and congressional branches. I'm just fascinated by this idea that they're not working in concert and have their own interests.

Benjamin Wittes: Well, I, I assume they are working in concert.

Michael Feinberg: Yes, I was being sarcastic about the fact that Congress no longer exists-

Benjamin Wittes: Yeah, but, but-

Michael Feinberg: As an independent institution.

Benjamin Wittes: But I think the, you know, w- when you're thinking about which Eye of Sauron can wreak greater hell on you as a research organization-

Michael Feinberg: It's Congress.

Benjamin Wittes: It's not necessarily the FBI, right? And because the FBI does, is answerable to courts in some ultimate sense, they do ultimately have to produce the goods And, you know, when they indict you for an Instagram post about seashells, they make themselves a laughing stock. Whereas when Jim Jordan does the equivalent thing, he doesn't make himself a laughing stock, actually. He just gets to throw out subpoenas. And so I, I, I do think Congress actually poses some independent dangers here.

Julia, you were very kind in your piece to talk about the Lawfare Public Service Fellowship. As you know, this is an issue that, like, we created the fellowship in order, in a very small way, to address. And it has been a kind of obsession of mine to try to get other organizations to create similar, not necessarily fellowships, but similar, like, counter-incentive structures that allow people who are coming out of government with things to say actually to have opportunities to say those things, and then while transitioning to other lines of work. I'm always hesitant to solicit praise for Lawfare on our own shows and I don't wanna do that here. I do want to ask you about the general absence of such programs and what could be done to create more of them.

Julia Curlee: Yeah. Well, you're not gonna, I don't need much provocation to sing the praises of the Public Service Fellowship for having given me a critical life raft in, in all of the work I've done in public, whether it's for Lawfare or The Atlantic article. I needed to be able to pay my bills and my mortgage while doing it. And without one place that, that let me get established on the outside so that I could, could have a track record of, of publications to then hopefully land future employment, it would've been nearly impossible, and my choices probably would've been to stay in place until someone hopefully someday hired me and then accept censorship, because I also have a family, too to take care of.

And I, I, before I get to that point in just a second, I wanted to, to just note there's a similarity in my experience, in my mind, between what the, the Public Service Fellowship is trying to do and what historically the CIA and other intelligence agencies tried to do in order to create a structure in which it should not take an act of, of, you know, individual self-immolation or courage to have a GS-13, mid-level officer tell a cabinet secretary that they're wrong. We create incentive systems, protections, the, that you'll be promoted at your next panel because you spoke up and you, and you did the, you performed the values that, that, that we value. And so it, it was a structural feature of the intelligence community that they did what we needed them to do despite possible personal incentives.

And what I think that what we're kind of doing on the outside here with the Public Service Fellowship is to kind of create one of these structural incentive systems where you have a place, you have an outlet that you can publish, you, you have a salary that can, that can pay your mortgage, and in fact, you're incentivized to speak up and tell the, the public what you know.

And so it's a very unique entity as far as I can tell in the broader media and, and, and think tank world, and there, there are just a few places that I could name that are similar, which we, we list in the piece. There's the Democracy Forward effort to hire people to work on Civil Service and Innovation Fellowship, and I know some of them they're talking about documenting the damage that has occurred under this administration and then charting the way forward into the next administration. And there are entities like the Public Service Alliance which I personally have been benefiting from, which provides discounted services to former federal employees and helps you with, with basics like defending yourself against the online mob that, that could come for you if you speak out publicly.

Benjamin Wittes: And the Public Service Alliance, it's worth noting, is an organization that was stood up entirely in response to the current situation. It's not like Lawfare, which, you know, like we preexisted this and created a program. This is actually an organization that didn't exist three years ago and was stood up to do this thing. And they've done remarkable work.

Julia Curlee: And so just looking, and I, and I know you, I'm sure Mike could talk more about on the FBI side of the house, and there have been a few other nascent efforts through, you know, communities of formers in like the Foreign Service. It's just not at the scale to, to really support active scholarship. There's no reason why this couldn't be more common if there was a funding base and if, and if D.C. area think tanks were able to carve this out except for, you know, the, the retaliation that they would face if, if, if they were-

Benjamin Wittes: Fear of the Eye of Sauron.

Julia Curlee: Right. Right. And, and I, so, and before we go forward, I just wanted to, to, to, to state that there are enormous rewards in speaking positively of the administration, both in, in your, in your think tank world, whether you're, you're doing scholarship related to, you know, defense work that the administration is championing, and then if you're in the private sector world, businesses that are encouraging their investors to make certain investments close to the president's personal family are being rewarded with contracts.

And, and when this is all over, I, I, I don't doubt that investigations will find that prominent D.C. firms and consulting businesses have been giving people advice that borders on certainly the unethical, but it'll, it'll, it, it will raise serious questions over whether there was an effort to personally enrich members of the president's family in, in steering contracts in such a way that, that it would, that it would benefit these individuals, and those companies have then been, been privately rewarded. So that's on the other side. So let alone taking risks by bringing in a, a person that's been fired. They've been actively encouraging people to engage in behavior on the other side of it, of, of personally enriching the president and his family.

Benjamin Wittes: Mike, do you have thoughts on this?

Michael Feinberg: Look, we're not at the point where we are living under an authoritarian jackboot yet. There are places like Minneapolis during Metro Surge or Chicago during Midway Blitz where it may very much feel like that and in fact be that for discrete populations, but that doesn't mean we're not backsliding either. And, you know, when I was a student in school studying history, you would look at all these different oppressive eras, and you would think, "How would I have reacted?" And I don't know a single human being who says to themselves, "I wouldn't-"

Benjamin Wittes: I would've been on the S- I would've signed up with the SA and been, been one of those-

Michael Feinberg: Yeah, I would've signed up with the SA, foreign troops. Yeah Yeah. A- and, you know, I, I would just implore the people who have an opportunity to help people like me or Julia, or give one of their employees the breathing space to talk publicly, I would implore them to think on the fact that you're not asking yourself what would you do anymore in a hypothetical manner. You're in the thick of it, and you might have kids, you might have grandkids. You might wanna ask how you're gonna explain your behavior and your individual choices, however small and non-consequential to the country at large they may seem, when this is all over.

Julia Curlee: And, you know, there, I am contacted constantly now since I've been writing publicly, by people still on the inside. I've lost track at this point, but it's gotta be at least 100 of people who send me an individual message that says, "Thank you so much for speaking. I wish I could. I can't because kids, mortgage, house, job. I'll be fired." I mean, it's just like, it's like a form letter at this point, and I really appreciate when people reach out.

But, like, you know, this, this is the moment when, when you can really have an impact before the consolidation of a censorship regime and autocratic behavior becomes irreversible. And I wish that more people would do it, and I think that one of the things that the Public Service Fellowship does is that, you know, it's not a permanent thing, right? We're, we're supposed to find onward effort onward employment so we can con- continue to do this. And when you do that, and when you land on your feet and speak for, for months at a time in a manner that's critical of the administration, and you survive, you show people, not just tell them, that it is survivable to exercise your First Amendment rights if it's critical against the administration, and that's hopefully what we're doing through this program. And, and again, I've been really grateful for it, and I hope other people will get the chance to do it in the future.

Benjamin Wittes: As Nietzsche put it, "What does not kill me makes me stronger." We're gonna leave it there. Julia Curlee, Mike Feinberg, thank you for joining us today. Julia's piece on the censorship incentive structure is live on Lawfare today.

[Outro]

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