Rational Security: The “Live from Mom’s Basement” Edition

[BEEPING]

So as you guys can probably see, I've made my way out of my murder basement, right off in

record these episodes, I have made it to the place where all 40-year-old think take fellas do their best work, my mommy and daddy's house, where I'm recording from today. So a student video watchers can try and garner whatever lessons about 20 something and teenage

“scat from the books on my bookshelf, although I think the only thing you'd probably make out is my travel”

scrabble kit from the 1990s, which does say a lot, I think about me and what I was up to in my high school years, that's all I've really got for you, but yeah, I'm excited to be with you guys from this somewhat more well-lit environment. Well, there's a tradition of recording Laugh Hair, Ratzek from your mom's house that you're following.

That's right. My foot steps, I just want you to note, but I was in Hawaii. That is slightly nicer, I learned Northern Virginia. That was route Julia, you can't just, you know, you can't just, you just tell why you drop here and there, I know, but Ari is in the coolest city in the world.

That is true, and actually, Natalie, do you know what I did last night? Why? I went to the boat, my colleague owns a boat, and she messaged me at like 4 p.m. And she was like, hey, do you want to go on a boat, and I was like, yes, that's a lot of food.

Anyways, it was glorious, it wasn't quite a bowl. So I am now officially part of the Chicago cult that I mocked for years and years. Welcome. Thank you. It's a cozy place.

“You know, Ari's living in Chicago, because she needed to raise her mic and camera.”

She's just put on a top of a hot pizza pie and brought it up right to the perfect level. And that only works in Chicago. You do it in New York. It doesn't work. You need like, 10 pizzas, but then in Chicago, one will do it.

It's gonna end with a dad jokes this morning. You know, very, it's us. Hello, everyone, and welcome back to Rational Security. I am your host, Scott R. Anderson, thrilled to be back with you again for the show where we invite you to join members of the Law Fair Team as we try to make sense of the week's big national security

news stories. Whether they are in our lanes or not, I'm thrilled to be back with him on my very talented colleague to talk through this week's big stories. Join us at the top of my screen. I will start with Law Fair Executive Editor Natalie Orpid.

Natalie, thank you for hopping back on. Thanks for having me. I'm thrilled to have you. Join us.

“Once again, is relative newcomer, but a frequent voice of relate here on Law Fair.”

That is Law Fair's public service fellow, Julia Curley. Julia, thank you for coming back on the podcast. Yeah, absolutely. We should have like a jacket for the, you know, like, five, like SNL does. Like when you, when you, when you, I like that.

I really like that. I don't know what color my jacket would be. This point's I have done literally hundreds of these, but I do. I would like the idea of a jacket. Look at the law fair merch department on it.

Yeah, like a technical or dream coat, sort of five.

This is really what I've always been working towards.

And I think that's, that's about right. I don't have a dog on it for Ben's sake. That'll be fine. And joining us once again is Law Fair contributing at our and vice president at the Chicago Council for Global Affairs.

Ari, top of the buy. Ari, thank you for finding time to come back on the podcast. Thank you for having me. From exotic bean town itself. Not bean town.

Let's say that's Boston. From exotic. We do have a bean, though. Windy city. Yeah, it's like I confused for a second.

But I was like, wait a second, that's wrong.

Yeah. All right. Well, for the city, not to be mistaken with the actual wind that has to do with politicians. I'm told. All right.

Good to know. Looking at you, Ari. I'm so proud. Hey. Well, we have a lot of news stories to talk through this week.

A few familiar ones, if you knew, and to let us take into it. Topic one for this week, lateral thinking. Five months into operation at Pek Fury, maybe depending what you call that. I mean, how you divide the military operation. I should note.

The US Iran War has flared back to life, and more importantly spread outward. Over the past several weeks, fighting has jumped into countries, actors and domains in a textbook case of what some might call hot horizontal escalation. US Insati Jets, open a new front by striking Iran, back militias inside Iraq, Iran line forces battered quates, water, and power infrastructure inside the oil facilities.

water utilities here at home. Then last Friday, President Trump threatened what he called the biggest attack since World War II before he probably calling it off, with talks over reopening the straight-of-hormous now said, at least by the White House, to be back on, although notably Iran among others disputes that.

“What does this expanding after mean for the future trajectory of the Iran War?”

Topic two, squatters rights. The intelligence community has a new leader of sorts. July 28th, the Senate confirmed Jay Clinton, the former SEC chair, and Trump's US attorney in Manhattan, as Director of National Intelligence on a party-line vote, ending the rocky acting tenure of housing, chief bill-pulti.

But, in nearly unheard of move, the White House left Clayton unsworned in for a week while Pulti stayed on using the extra days to run a fifth round of purges at an agency he had

already cut nearly in half before Clayton was finally sworn in this past Monday.

The Taga has reignited the fight over Section 702 surveillance authorities, which have lapsed and raised potential legal questions about whether Pulti had the authority to keep acting at all. Here does the OD and I go from here, and what does it mean for US national security and the intelligence community?

And Topic three, twice guys, a sprawling New York Times investigation published over the weekend, Pulti backed the curtain on how Paul, twice, and I am going to say it like that every time because they have that goddamn comment right there in the middle for no good reason. The first elite law firm to cut a deal with the Trump administration back in early 2025

to escape a punishing executive order actually made its faithful decision, reporting details how then chairman Brad Carp had listed Patriots on a rubber craft to reach Trump, agreed to $40 million on pro bono work and dropped the firm to EI policies, and was reportedly blindsided when Trump spun the deal in his own way online, and a length after a wave of star litigators fled the firm in response, Carp himself knew his ousted for his

ties to Jeffrey Epstein, and fresh revelations also emerged about the quiet multimillion dollar exit of the firm's first openly transgender partner. One has a capitulation, if that's the right thing to call it, cost, Paul, twice, and what lessons should other law firms in the legal community as a whole draw from it. So for a first topic, Ari, I want to come to you.

It has been an eventful couple of weeks since we've gotten to talk about the Iran war. It's one of these topics that we could talk about every week, and in a way we do revisit

a lot, but there's always little new angles that are emerging over the current state

of the conflict in the way it's expanded.

“I think that the last time we talked about it.”

The war is on escalation. I think has been one of the maybe two or three big stories about this. We are seeing a reemergence of a trend that was very real early in the conflict, where we saw Iran, and to some extent Iranian proxies, hitting a number of targets around the region, including parties not directly involved in Israeli and US military operations.

Here we're seeing a number of attacks going, are you even further, I believe they did before, particularly in attacks on US forces in Jordan. We have the hooties now, finally after having kind of a laid, fairly dormant for the last few months, really stepping in a big way and posing a blockade on Saudi Arabia. Now, potentially taking this military action at Iran's urging, including potentially

from Iraq, which I am very surprised and confused by. So all around, talk just a little about what these big trends are in this horizontal escalation picture. And what it tells us about the state of these purported negotiations that are ongoing, between the United States and Iran, although notably the White House says those negotiations

are ongoing.

“The President has said that Iran has disputed it, and the only negotiation I think that”

we have reporting confirmed of is actually more Iran, Iran, Iran, and to some extent cut to our negotiations, and not actually direct US Iran negotiation. So just bring us up to speed a little bit, and we're all these threads lie. OK, well, so we had this memorandum of understanding that was signed back in June that was supposed to set off this 60-day clock for the United States and Iran to on a bilateral

basis, figure out two sets of main issues, the first being Iran's nuclear program, and

the second being the reopening of the Strait of Hormos. And obviously putting an end to the conflict in a sustainable manner. As I think we expected, and probably talked about at the time, the MOU did not hold. We now have confirmation of it, and what has happened is precisely what you described, which is this horizontal escalation that we are seeing.

I think the first note where the thing is that the proxies, the Iranian proxies at the beginning of the conflict were relatively an act of, and part of that was because of the Israeli campaign over the past three years since October 7th of degrading Iranian proxies in the region. The Lebanese has bowled chiefly among them, but also Hamas and others. And so there was a little bit of a delay in some of the proxies, notably the Houthis

who are now in full force entering the conflict. They had kind of been sitting watching things, or they had taken some action, but not a ton of action. And now we're seeing all of them, but some of them become a lot more active.

whole war started, which was that the conflict would obviously drag on for a while, that it would spill over into other countries. And we've said this before, but it's worth repeating that part of the way Iran is obviously raising the cost on the U.S. for this war, because it can't really hit the U.S. homeland is by targeting and having its proxies target partners in the region, U.S. installations

and forces in the region to continue to kind of show that it can also hold the United States and its partners at risk and to ensure that it's not a one side thing where Iran is getting hit at the United States.

“It's kind of getting to not remember that it's really in a war, but continue shooting at Iran.”

So that's where we are.

The second piece that I think is important to highlight here is that we've obviously had

the situation in the straight of hormones that has been very much in the news, everybody's been following freedom of navigation has been disrupted there. Now we have a second troke point that is at play here and that is the bubble of mandum. And you know, we are now seeing disruptions in freedom of navigation there. And if this trend continues, it is going to be really problematic.

The third thing that has been happening is that we're essentially in this five-step process that we seem to be rinsing and repeating, Julia and I will have a piece on this at some point when my Pentagon overlords finally clear it. But essentially we're in this cycle where every few weeks we seem to be going through step one.

“We have tit-for-tat escalation and again, it's increasingly now affecting more countries and”

more troke points in the region with Iran hitting U.S. partners, U.S. forces, the United States then retaliates and hits some Iranian targets. Then step two, we typically have the kind of tit-for-tat escalation on social media where the president tends to, you know, have a series of true social posts and talks about oiling up a bunch of targets in Iran, brings in potential civilian infrastructure and, you

know, trends possibly war crimes, defer to Scott and Natalie on that piece. But certainly, you know, taking a number of steps that are dubious and in nature, then you have a lot of scrambling that happens diplomatically. That's step three. You have partners sending messages to Iran saying, "Hey, everybody should calm down

here, sending messages to the States saying, "Hey, we're working out a deal, perhaps maybe stop tweeting about blowing up bridges and roads and, you know, water installations." And then after that, you typically have step four, which is where the president comes and says, "We may have a deal on the table and therefore insert, you know, Arab leaders name here has asked me to stop, you know, the tweeting and the fighting."

So, we're going to take a break here and then that happens.

And then step five, it's, "Oh, never mind, we're back to shooting because it's actually

not working out and rinse and repeat." And this has been the cycle that we've been in. The challenge is now paired with the horizontal escalation we've been talking about, which is that we are just kind of seeing this play out more broadly throughout the region and we're in a pretty challenging situation.

So that's my recap of where things have been since we last talked about this, which was probably last week.

“I mean, to me, with the most amazing and bizarre part of this conflict, although I think”

it's actually like, was kind of predictable from the outset and the reason why for so long the United States was very red isn't about doing this right dramatic step. And that's been talked about again for a decade or two in various national security circles of directing direct substantial action against Iran. Is the extent to which a U.S. or Iran conflict is now absorbing almost every other conflict

in the region. And part because a lot of other conflicts had a Iran, U.S. or Iran, other states in the region sort of tension as a strong element of it. So now it's absorbing to some extent the Saudi Arabia, who-t, gold state, who-t conflict, that's been going on for a decade now, you know, tamped down in recent years, but that

was a big focus of debates during the first Trump administration, the Yemen Civil War,

which really wasn't in fact more of a regional proxy conflict, a lot of it over Iran. We have it intersecting with Iraq's own internal challenges with militias, which has been a real focus of the U.S. or act relationship in theory, U.S. troops are supposed to be exiting the country by the end of September. In a way that actually implicates the Islamic state conflict that the United States been

apart in since 2014, because the legal authority, at least that the executive branch has written rely upon for U.S. military action against the militias in Iraq, has been the 2001 AOMF because of the nexus to the Islamic state conflict, the 2002 AOMF regarding Iraq has been withdrawn, so that's not available for statutory authorization. Curious is to see if the administration shifts its views on that after September 30th.

advice?

You know, this is on top of the Lebanon conflict already becoming essentially a huge kind

“of connector with the Iran U.S. conflict, and this really complicates, I think, like”

any sort of resolution to these sorts of conflicts, because Iran is pulling in all these other threads that other regional actors the United States has ties to are going to have it want to have a vested interest in, and I'm sure to some extent, you know, these railies, at least we know, want to have, you know, Lebanon separately, that's something that has been a point of friction with the Trump administration, precisely because it wants

to get, or at least at one point, really wanted to get to a deal to resolve the straight of foreign news situation, and it's hard to imagine these other things are going to make that much easier, and now that you have the who these are active, they have it affecting the Iraq relationship, all these other nexus, it's just kind of wild to me. So, Julia, I want to come to you on this, I mean, how predictable and outcome was this

for this sort of dramatic action, like how much should, frankly, we'd be holding the

Trump administration accountable for unleashing a parade of horribles potentially that we

seem to be marching down in regards to regional conflict, and where do we, does it go from here? I mean, how much can you put this back into the bottle, and how much is it, we are just looking at a very different regional sort of security dynamic that is going to look profoundly different from what it looked like, you know, up until February of the year.

“So I think we can start, of course, that this was predicted predictable and has now come”

true. And so, yes, the administration should be held accountable for its obvious lack of planning failures, shutting out the intelligence community from the planning process, and just not having an NSE to actually orchestrate the instruments of national power, and this is the inevitable result of amateur hour, which has resulted in a debacle.

I want to return though to the strategic logic of the Iranian approach now, which I think builds on what Ari said. So you have them opening up these new fronts across the region, new actors getting involved all, you know, the Iranian proxies, new choke points, but we're also seeing them target new actors or we're bringing the fight into other domains.

So we have the first strikes on the Kuwaiti water and power. We've got potentially cyber attacks in the United States, the water utilities and at least seven states have mysteriously been targeted. The administration is frankly trying to downplay the potential for Iranian nexus to these

kinds of cyber attacks, but this kind of an approach was always going to be in the Iranian

playbook to try to spread violence and disruption around the world to get others or populations, like in the United States to put pressure on their governments to wrap up the war. So this is all based in the fact that Iran can't answer what we can do, which is a 90 target a night blow for blow. We can really do damage inside of Iran.

They can't answer that, so they're going to fight this war on terrain that favors them, which is spreading the battlefield and winning by failing to lose and refusing to lose.

“So I think we're going to see more of this, because the Iranians have very little incentive”

to wrap up the conflict now. They've seen the United States move backwards in our war aims repeatedly. They saw a sign up to a ceasefire deal for 60 days that was worse than the status quo anti. So I can't imagine the Iranians who were famous for using an American upcoming election

or change of power as a tool to put pressure on the Americans to give concessions at the table as like a decades of practice for them. They have absolutely no incentive to let us off the hook here. If some of them don't let us off the hook, like let's say Iran has expanded and brought in these different elements.

What does that mean for U.S. and regional security interests, kind of moving forward? What are the different dynamics here? Obviously there's much more inner linkage to a bunch of different things, right? The economic patient is really different. I mean, Gulf states, I think if you can't liberate the state of removes their ability

to export things and import things, like their quality of life, their economic power base, is going to diminish. I don't know if it's going to collapse. I suspect not. And particularly, because you already see them working towards certain alternatives.

You see the UAE, building a port facility that kind of tries to bypass the state of removes by, like, this is a new port facility in Fujera, kind of one of the Emirates and us kind on the other side of the peninsula, and then presumably, I think they're going to establish some sort of land transit route between that and the other parts of the Emirates Abu Dhabi Dubai.

There are other solutions being put forward new pipelines for oil, for gas, all which actually the Gulf states are in a position to advance because they have a lot of capital, but it's going to take time and energy. And it still doesn't help you when you're talking about consumer goods and other things that at least for places like Dubai and, as someone said, Doha have been like a big

part of their selling point. They're selling a luxury lifestyle, it's actually like a part of their economic base, a power-paste, cultural power, and even, like, what does it mean if the Gulf states are stuck

but was never really willing to use, I think, because they worried what the cons--where

cons going to be, now they've kind of lived through the worst cons, and they recognize there's limits on it, and they're much more, at least, by my sense of things seem much more willing and able to actually exercise it.

“What does that--how does that change the regional picture five or ten years from now?”

Well, if the superpower United States had one job in the Middle East, it was to protect from the standpoint of the host countries, was to protect their security, and to ensure the flow of oil through the straight of our moves, and we have failed now on the two main things that they have, for years, expected the United States to be able to perform for them, and once we have failed, it's going to be very difficult to regain our credibility

that we'll have the ability to do this. I think that where we are is probably best called a violent competitive bargaining, which

is the subject of our eyes paper, and when you add in third parties, like the Gulf states

or allies of the Iranians, like the Hezbollah, it's going to become increasingly difficult even if both sides want to come to an agreement to get everyone's proxies in order and to line them up to abide by a deal. The last thing I want to say on the negotiations and the end game for this, so if you take a step back, interstate conflict usually ends something like this in a messy, competitive

bargaining, shooting, talking, fighting, repeat. The United States has not had one of these, and it's in its mind for quite some time. We imagine wars like this, and in absolute surrender or formal peace agreements, but certainly most conflicts end up with these kind of bleeding stalemates and tell most both sides decide it's no longer in their interest.

“In this case, I think that even if we can reach temporary agreements that will allow the”

Iranians to dial up the flow of oil through the streets of Hormuz, I don't know why the Iranians would give up that strategic leverage to dial that back when they're not getting what they want at the negotiating table. So I can see this process of going back and forth from ceasefire to fighting, playing out, possibly the rest of this year.

If I can add a couple of things to what you both just said, so Scott, I fully agree with you that Gulf States may be looking to bypass the straight. It's not going to resolve some of the broader issues that they're going to have, which is that they've now for decades, tried to position themselves as a region where you have relative stability.

Yes, it's been in the Middle East and so you tend to think that there's conflicts and terrorism and all those things, but it's actually been the Gulf region has been fairly insulated, partially because of U.S. installations, which had served as a deterrence, which they are no longer being seen as, and so you've had this kind of movement toward having cultural centers, a lot of universities, U.S. universities, right, have branches throughout the Gulf.

A lot of really important museums have branches in the Gulf. So the sort of, you know, there's the energy piece of this where there is potentially a resolution here, even if this continues, but the element that is focused on tourism, on cultural land, kind of the more quote unquote "soft power" side of things, that really depends on stability and the longer this conflict continues, the more horizontal escalation we see,

the more of these proxies become involved, and the more the fighting starts to take place against, you know, Gulf partners in the region, the more that is going to kind of depreciate the value proposition that the Gulf has tried to put on the table for the past few decades when it comes to that sector. That's number one.

“As Julia said, part of I think what is going on in the Iranian calculus right now is that”

the sunk cuss are sunk, right? They have paid the price of this conflict, and they're now the longer this goes on, the better off they are, because now the proxies are re-entering the game in a way that they weren't a few months ago, and perhaps if this were had ended two months ago, we wouldn't be where we wouldn't be where we are, but you wouldn't have the reactivation of the proxies

in the same way that you have now. The other piece is that the Iranian regime and its current iteration has serious governance issues that it has to deal with. The longer the work continues, the more it can kick that can to later.

The second the shooting stops, they have to think about, oh, by the way, all the economic

challenges that led to the mass protests just a few months ago. They're going to have to deal with all of the social problems that continue to exist. They're going to have to address some of the challenges that stem from the mass repression that they conducted just six months ago, the environmental challenges that we don't talk enough about, but the water shortages, all of those things that have been exacerbated

or else they're going to have more rounds of mass not unrest but protests, and they don't

really want to get to that point. So for them, for this brand new and some ways Iranian leadership that is less experienced, that does not have any responses, any policies, any ways to address the problems that the people have, being at this kind of state of war where it can kind of point to an external enemy is actually a very comfortable place to be, and so in some ways they don't really

have the incentive to end this conflict, and of course, you know, Julia mentioned this,

“you have then you have to add in Israel now all of the proxies.”

Everybody has their own interests that they're pursuing here, and so for this reason, I think I'm personally very skeptical that we're going to see an actual end here that we're going to see this kind of five-step process that I that I laid out.

I think we're going to see some version of this playout for the foreseeable future.

And like two things just to add on that jump out at me is that the value proposition you put forward, there's also an American-shifting value proposition I suspect on this because if you cannot transit the straight-of-remuse readily, a lot of those naval facilities you're maintaining in the Gulf become a lot less valuable as kind of a forward operating base for the broader region.

Or if nothing else it becomes a kind of recurring cost of doing that because you're going to be taking suffering pot shots from the Iranians, you're not going to want to move to readily, it exercises are probably going a lot more difficult, meaning if you want to give your, you know, seem in another people exercises, you probably can't stay in them there very easily, at least at the scale you would want to do.

And there aren't really a lot of other options in the, you know, particularly the Indian Ocean sort of area that I can think about for, you know, soldiers, I know there's a facility in Diego

“Garcia, which I think is a major naval facility, most of the others either in the Gulf,”

like the Persian Gulf, or kind of on the Red Sea, there's a good jubutty base, I don't know if that's a naval study, I think it is, I know there's like a drone facility there. There's some, you know, in the Red Sea and then you have these turned med, but then you have to transit, so as the Red Sea to get anywhere. So actually like, it has pretty big strategic ramifications if this becomes a real friction

point.

Maybe the United States is just military, like powerful enough that they can eat those costs

in that frankly, the lack of good alternatives means that they stay there, I suspect it well, but it's a value proposition that's actually kind of declining on both ends. And the flip side, I know it also is like because of the dynamics of this conflict, it actually gives other strategic actors, particularly China, tons more leverage over all the regional actors, because they are because they're consuming Iranian oil exports.

China, to some extent, India, Singapore, I think, or some of the biggest recipients of Iranian oil exports, they have a lot more leverage around needs than them today, to be able to continue receiving this in part because of US sanctions, which United States has oscillated a little bit on, in part because of those are just the relationships they have, all of some, they are diplomatically much more influential without having to have any sort of military

relationship, because they may be the one party that can negotiate a little on-tray in with Iranians to get transit through the straight, and also the Gulf States can have to look a lot more towards them, and that kind of question of how much of the Gulf States leaning towards China leading towards the United States to some extent, Russia, but like less of a meaningful player, like has been recurring confrontation for the last 10 years, and this is a big

week point, it strikes me for the United States, and in that competition to extent there is one.

“Now, I want to come to you to another part of this. We've talked about this show, I think a number”

of times now, that there's a good reason to think is a major strategic plunder, and of course, the Ebola. It was facilitated by the fact that the President was able to make these decisions more or less on his own, defecto, if not to sure. There are legal arguments that you and I know well, regarding domestic law, certainly international law, but pretty even domestic law that says, well, maybe the President isn't able to do these sorts of things. Increasingly, this administration

has kind of whizzled around them, they haven't really ignored them. Remember, they are adjusting their casualty figures, and are saying, well, we are complying with the World Prize Resolution, because Operation Epic Fury ended before 60 days, and this is all periodic follow-and-military action that's freestanding different 60 day clocks. And I sure they would say, we haven't had one of LLC opinion yet, but I'm sure they would say, yeah, but this conflict was within the President's

article two power. It doesn't rise to what the declare war clause says. Congressional authorities needed because US service members really haven't been put at that much risk. I don't have died a lot of have been injured. I don't want to minimize that. But it's not at the scale. The executive branch usually looks for, which is, you know, usually career Vietnam is where they acknowledge at least that would be the line, where they hint that that might be the line. The Maduro opinion that

this administration actually suggested could be lower than that, interestingly. Like Afghanistan, Iraq, wars, as maybe the threshold, but even that's we're talking about thousands of casualties, major numbers of troops at a risk, different from the sort of scale in terms of risk to service members. But the geopolitical consequences are huge, potentially huge, much more dramatic. What does that tell us about like the domestic say of the law here? It is law,

meaningful constraint on the President could it be under other circumstances? And how do we

constraint on this President who delights in this administration, which delights in making the most expansive arguments with respect to the extent of executive power and has claimed that all sorts of things under article two, empower him to make decisions that are much more unilateral than any

“President has previously argued. That said, I think with respect to war powers, there's been a”

long line of increasingly aggressive arguments about why Congress can be kept out of the loop in authorizing military action. It did not start with this President. It didn't even start with

the first Trump administration. It's been on a gradual expansion path for many, many administrations

in a row, and I think the arguments that you have seen, I mean, as you point out, Scott, we haven't seen a specific OLC opinion describing the legal argument for where we are currently in the Iran conflict. We do have some clues about what the legal argument is or the legal thinking is, because of its communications with Congress. So for the War Powers Act, I will refer everyone to Scott's and my podcasts about the War Powers Resolution, which is quite detailed because Scott

“is quite the pro on it. That is, of course, a mean domestic law question right now, the power”

of which is quite limited legally, because there's only so much Congress can do to really prevent conflicts from continuing. Though, of course, there's some power of the purse, but even that is limited, because there are quite a few work-arounds. Otherwise, domestically, we don't have legislation that is authorizing this conflict as it was in place for Iraq and Afghanistan, and so the article two argument is all that's left. There, as we've discussed in many other

contexts, there aren't a lot of mechanisms to really challenge that as a legal argument, certainly not through litigation. It's just a very hard question to bring in front of courts, and even if you could, courts tend to be extraordinarily deferential to the executive in these sorts of questions. So to summarize, once again, no law is not a meaningful constraint on this administration, with respect to this conflict. I will note, in getting ready for this podcast,

I did a sort of round-up check-in with the media coverage in other countries of this conflict, because my overwhelming sense, as Julie and Ari have mentioned, in a number of areas, is that the understanding that Americans have of the conflict is from quite a different angle. We're, of course, talking about it in terms of its popularity and in terms of what impact it's having on energy prices and affordability more broadly, which is already an issue, has already been

an issue that will be prominent in the midterms, and so what all of this says about domestic politics.

“But I think the fact that bases all over the Middle East are being struck really is not as much”

on the radar as it is in other places, of course, in the states where those bases are located, and they were not expecting strikes within their territory, and there has been some collateral

damage. You know, these things don't always land precisely within the confines of the precise

military installation, and it's really, really worrying for those countries. It really fundamentally changes their understanding of the U.S. role and utility, where they are, as Ari was saying, the other thing that was interesting to me about other news coverage is this issue, the legal issue, but from the international law perspective, because a number of outlets, you know, unsurprisingly, especially in France and the U.K., are talking about the continued

unlawfulness of this under international law. The premise of going to war in the first place

really, really dubious under consensus international law. Perspective, although the U.S. has always been

more aggressive in its thinking about when it is lawful to go to war. And also, of course, as we've talked about before, and we don't have time to discuss in depth, but I really want to underscore the importance of the number of times that the Trump administration has threatened what seemed to be pretty obvious on equivocal war crimes, if they were actually brought about, including the, the really dramatic example from, I think, a month or two ago at this point

law fair. After all, the discussion of hitting infrastructure and energy facilities and things like

that is not as unequivocally a war crime, because there is some argument in international humanitarian law that dual use infrastructure can be a legitimate target. It is a very high bar for deciding that. And there's no evidence certainly in the rhetoric about it that that is what the legal argument would be for any of those types of strikes that are being discussed. It really is the discussion is really oriented around how to inflict damage on Iran without any apparent

interest in what is a legitimate military target versus not under international law, which these pieces of it are very, very much ingrained in domestic law in the United States as well.

“And the last thing that I think really, I just have to flag because it was so incredible,”

the thing that really sort of underscores the concerning aspect of these sort of comments about, how do we inflict damage on Iran, no clear articulation of or reference at all to obligations under international law to not indiscriminately kill civilians or target civilian infrastructure.

There was CNN reporting, I think yesterday, that DOD basically sent around a solicitation to,

I actually don't remember, maybe I originally recall how broadly it was sent, but sent an email basically soliciting ideas for how to harm Iran and punish Iran, which underscores of course also the lack of strategic planning and the purging of expert to have thought through the possibility of the sort of conflict as their full-time jobs for many, many years and could have brought some insights to the conversation. But it's a really remarkable fact that I think is really indicative

of a number of threads we've been talking about. Yeah, that's all well taken. I mean, the only point I would say inclusion put on a next topic is like, when the president threatens, when then theory, the only real constitution limit on the president's authority is taking the attraction of a scale of a major armed conflict. And then he openly threatens what he did the other day, the biggest air campaign since one or two on his own authority, there's kind of an open disregard for what people see

as legal limits. And the one point I'll disagree on maybe lightly, Natalie, is like, I do think there's ways to make the law matter for the administration, but they are going to require a very novel litigation

“around. So I've written about a little bit in the past. I think there are routes that you could use to”

bring pressure on the administration, although it's hard to find the right plaintiff and they're not certain. And there are political factors made away against that, but those are going to that calculus is going to change if this war becomes dramatically more costly and unpopular. Perhaps most specifically is congressional action. A lot of it is hard to do to get past the video, but there are sort of little routes you know, beginning to see Congress do little things in terms

of enacting the concurrent resolution, directing withdrawal, which raises child-up problems or questions at least, but is a really notable act. And as I've kind of written in that PC mentioned, potentially opens up an avenue to other sort of congressional action on a strict majority basis. If nothing else, I think we need to start thinking about those sorts of counterbalances here,

“because of the consensus that we've been given the President so much authority over these sorts”

of fundamental decisions, is that as assumption that they would be informed, they would be made sort of, you know, maybe not conservatively, but like without, not in a manner that's reckless. And this conflict really calls in to question more than just by any other U.S. military action, except for maybe the Iraq Warp, which the President did with Congress somewhere, right? So you get not a pass for that, but it was a inter-brandt problem here, the term administration can't say that.

So I do wonder whether this is finally the straw that breaks the camel's back or becomes if it

gets more popular, that pushes people towards some sort of change in this area, but we'll have to wait and see. Just two things to add to what Natalie said. The first is on the coverage. So a lot of the coverage here in the United States has been focused on public sentiment in the U.S. when it comes to the War. One area that is starting to emerge that is not getting enough attention is public sentiment in the Middle East. And there was reporting recently in the New York Times that there is

growing opposition to our presence in Jordan. And I suspect we're going to see more of that throughout the region. And we have all seen this play out over the past couple of decades where when the United States could have those things, you know, literally when the United States kind of becomes militarily active in the region, there is typically kind of up and down in terms of how the U.S. presence is viewed in the region. And I think that is a space to watch because it is going to be

their countries, kick U.S. installations and forces out of the Middle East. Coupled with all

of the things we've talked about throughout the podcast today of, you know, perhaps the return on investment is no longer seen as making a ton of sense, perhaps China has seen as a more viable actor and so on and so forth. There might actually be movement. I'm not saying that we're going to get kicked out tomorrow, but there might be more there might be more questions surrounding U.S. presence in the region than we've had in a while. Number one, number two, we've talked a lot

about the NSC role in this process, the fact that the president is making international decisions.

“I think Natalie's point about the crowdsourcing of, you know, how do we essentially win this war”

within DOD? Actually, it raises another problem we haven't talked about in a while, although we

had earlier on in the conflict, which is that the civilian side of the Department of Defense

has essentially been sideline and deeply weakened. And the way to conduct operations, the way to think about the strategic objectives, the political objectives, the strategy and so on and so forth is not a crowdsourcing thing, so to uniformed folks whose job is not to do those things. It's actually to have a strong civilian side of the house who helps do that kind of longer term planning. And that is not happening partially because, you know, you have a weak secretary who doesn't have

a ton of experience and the folks underneath him, I don't know what they're focused on, bridge colby and others, but this is evidently not it. So they're going about this exactly the wrong way, which is to crowdsource this to uniform folks who should be actually focusing on the tactical and operational side of the house and not paying attention to or not really be involved as much in

“what we do strategically, what are the political objectives, how do we get there and so on and so forth?”

Hello, I'm Lena Kassel from Podcast, Fußball and MML Daily and I say you know, so be the only one to go and the new Bundesliga season again, to decide whether I'm mental, to sport directors, because all games are then even more like KickBass, right? And if you're right, KickBass, that's it, the KickBass is the four and the fantasy football manager, and that's the principle. It's very simple, you're a player, you're a beginner,

you're able to put your own rules, or you're a real Bundesliga professional in your cards, so you're willing to show you that you're a footballer and you're aware of it, you're able to take the Bundesliga season on the day, it's an August. It takes you to the top of all your dreams, you're a player, you're a player, and you're a member of the team, you're the KickBass app,

either download and all those things. Good kick, one fish mass. But let's move on to our next topic. Another repeat customer here on Rational Screening. That was the question of the state of Odie and I. Odie and I has a new director, the Off-saddractor of National Intelligence, has a new director of National Intelligence. As of depending on when you count it, last week, when Jake Lin was sent a confirmed or this

past Monday when he was sworn in, that gap is a significant one, because of course we've seen the reports mostly from Pulti himself indicating they've pursued an additional wave of terminations and removal of officials and other actions during that interim period. Although notably Senator Mark Warner, the Ranking Member of the Senate Selected Intelligence Committee, has cast some cold water and questions as to whether those firings actually have gone through

noting that they haven't seen documentation of them yet, which raises a number of questions on a number of fronts about this disinformation war. I want to come to you Julia,

“because I think the operating thought I will own up to this in my own analysis was that”

Jake Lin we thought was going to have a pretty confident path to confirmation. I think that was more or less accurate in part because he was seen as somewhat more sober in serious than Bill Pulti. In the universe of people working in the Trump administration, I think on the more sober and serious side, although that doesn't mean that's not without concerns. And perhaps more fundamentally, they were seen as a necessary precondition to getting 7202 authorization, which has very few strong

vocal supporters in Congress, but has a lot of quiet supporters in Congress. A lot of people who recognize 7202 actually is a really, really important tool for U.S. National Security, even if we may have reservations or concerns about how it might be used or the safeguards around it and

variety of other aspects of it. The first part of that, again, has proved more or less true,

but the second part hasn't really manifested in part of because of the way that President Trump himself and Trump administration has managed this, where you have people still raising 7202 concerns.

even now it's not clear exactly what this administration has intended for the intelligence community. So Julia, talk to us about what the state of the IC is and ODI and I are in a wake of the sort of action and we now have Clayton confirmed that maybe means something or maybe it doesn't. So what would we be making sense of this? Well, thank you, Scott. Yeah, with Pulti still seemingly floating around with announcements of more of fourth and a fifth round,

perges it, ODI and I, it's really unclear who is in charge despite the confirmation of Clayton. And so there is broad confusion in the intelligence community and I don't think it's an accident.

“I think that Trump was clear from the beginning that this interim period would enable his selection”

to make certain cuts, to make certain severe cuts to the ODI and I. It is still entirely unclear what for? It seems a consensus view that maybe the ODI and I is grown too large, but no one has articulated what parts of the ODI and I are no longer necessary or what could be smaller. Smaller is not a destination, it's just a direction. And so it becomes very unclear in a time where we're at war when there could be cyber attacks in the mainland United States.

What is the cut for? And during the confirmation hearings, I saw no indication that the incoming D&I Clayton had an answer to that question either. On the hearings themselves, I certainly and it for my sins watched all of them and it was very frustrating to watch the inability of the incoming D&I to answer a very simple question of who won the 2020 election. And if one of the main jobs of the D&I is to speak truth to the president and not tell him what he wants to hear,

he failed that test during his confirmation hearing. And so it undermines in my mind this idea that he will be the responsible caretaker. And I've seen a lot of smart commentary that providing a more respectable cover for the politicization of the I.C. is what Clayton could provide in people

pointing out parallels to Bill Bard during the first administration or what Rackliffe is doing

at the CIA now, just because the person seems to be normal doesn't mean the activity that's happening under their watch is what we would expect of a D&I. I will note that one of the main things that we've been worried about with the D&I is selected declassification of intelligence. And so now as we've been talking here, the White House has announced the declassification of several documents related to the Russian investigation to allegations that the FBI was investigating the president as a Russian

asset, all of this is yet more examples of taking the selective declassification of intelligence and using it to go after the president's political enemies. And I've seen no evidence that Clayton is prepared to push back on that. So I want to bring back an element of this conversation. And we've had in the past, which is about what the mechanisms are for pushing back or restricted. I mean, how much difference can a director make really? I mean, is there anybody who would be in

this role that might provide a degree of assurance in this regard? We know that President Trump

claims that the end of his first term in office he declassified unilaterally huge swaths of documents.

Those were the documents that he had piled him our logo, many of which bore classification

“markers had been, and I think probably were still classified despite the claims that he had that”

cash-patel-backed map up on claim that they'd do classified the sorts of documents while in the White House. The president can do this on his own. I guess what is there a level of insulation with difference kind of make about who these kind of officials are in there? Julie, let me come to you on that. So you're nailing a very difficult problem of the fact is in the second term, which appears nothing like the first term, the president installed political loyalists above all,

who had no institutional loyalty, who were personally loyal to him, and it didn't matter how badly they ran their departments as long as they did the things the president cared about that would be fine.

In the first term it was entirely different. You had serious professionals heading the CIA at least

“and standing in the way of repeated attempts to politicize intelligence. I think that we're not”

going to be protected by that now and there's very little reason to believe that they're going to do that going forward. And as I rack my brain about why would you put individuals like this in charge to carry out purges and declassifications? One of the main purposes to my mind is to punish

by carrying on these kind of performative bloodlettings over at OD and I, where allegedly hundreds

of people can be fired, but nobody knows who they are or what they do, it continually creates the press and the attention around attacking the deep state. And you need fresh content for fresh attacks on the deep state. And so this feels very much like theater, but the goal is to deter

“descent within the I.C. and it has been working. All right, let me come to you your thoughts on that. I think”

there's a strong case to be made that this is sort of the intimidation tactic, this is kind of the element that comes in. And it's kind of maybe there's even a couple different pressure points from this. Like one, you do have for people who are still there that they are intimidated or worried about their concerns or the cost of them taking action. It's much higher. On the other side of

this end, we've had colleagues who have made this point here. You've also by virtue of the buyout

plants and other actions, actually remove the people who have the may have the biggest ideological objection to some of the things the administration may want to do, because none of this is terribly surprising. These are things the administration has threatened to do. We're concerned they're going to do some of these from fairly early on. Many of them have taken the buyout, many of them have left, they're not in the bureaucracy already anyway. So in some ways we're both increasing the cost of

acting out and you are removing the people who might be most willing to bear those costs. Does strike you as true? I'm kind of curious about your experience where that's true or might apply another part to the government as well. The fence department, the broader dramatic apparatus outside the I.C. We haven't seen quite the same targeted action recently, but obviously DOD has had this kind of ongoing campaign of removal of different people, whether it's from President of

command or, you know, promotion opportunities. And then also from, we've seen it, you know, state department handle a little bit differently, but nonetheless, you at least have that buyout program. You have had some people rift there as a last summer. Talk just a little bit about how this tactics being applied more broadly. Yeah, I agree with everything Julia said, which is that, you know, there is this war of attrition against the sort of workforce across the board. The I.C. is kind of

“front and center right now, but it's been true elsewhere. You know, yeah, I think it is possible”

that by trying to kind of, you know, by implementing these riffs and what was called the fork at some point and, you know, all of these general kind of, the efforts to reduce the size of the workforce that you're going to get rid of some folks who may have had different ideological views on things. But what you're also losing is a lot of people who are, yeah, I'm not saying they're necessarily a political, but they are trained in the I.C. specifically to be a political to just present

the best findings they can to inform your decision making, right? And those folks are not necessarily just leaving because they disagree with the administration. Many are leaving because it's exhausting to be in the I.C. right now, because of the uncertainty, because of the fact that you're told every single day that you're part of this deep state, the enemy will in. And that's not anything that, you know, anybody signs up to do, like, people are there to just do their work to do their best

work and to ultimately help inform the president, make the best decisions that the president is going to make. So, you know, you have this kind of environment that is increasingly toxic, where you don't have job security, where you're told you're not good enough, where you're told that you're the enemy, and where your work is frankly not even informing anything at the end of the day, right? I mean, we've been talking about this in the context of Iran, but it's true across the board that it's

not clear that the I.C.'s assessments are actually factoring into decision making. And if they are not, then what is the point of having all of these agencies and all of these people's who are very well trained, very good at what they do to the things that they do. And look, if you're a policy

maker, there is always going to be times where you're going to be presented with information that you don't

like, that is true, whether you're a Republican, a Democrat, somewhere in the middle, there's always going to be information that you don't like, and how you choose to deal with it is the

“thing that matters. And, you know, I think this view that the DIC is singularly against this administration”

is just not true, it's just that this administration makes decisions that don't comport with, you know, reality sometimes. So that's the first thing. The second thing we've been focused on sort of the internal than the domestic ripple effects, I think we should also talk briefly about what all of this means from a national security perspective and allies and partners. And the fact that, you know, when you have an I.C. that is increasingly politicized, you have a D.N.I. who, as Julia mentioned,

is clearly not kind of, you know, there to advance objective truth and facts, but is really there to serve one person. Number one allies and partners may be less eager to share information with us,

and Julia can talk to this more than I can, we did a lot of work in the aftermath of the Iraq war

“to rebuild the credibility of our intelligence and our intelligence apparatus. And I think, on some”

level, we regained some of that after the Ukraine war where the intelligence community did such a credible job of using intelligence and intelligence disclosures and intelligence sharing in a really measure thoughtful way to advance a policy position for the administration. This is where the kind of the two, the two sides of the house worked hand in glove, but also just making sure that everything was objective and we had the best assessments that we had. And that really helped us regain

that credibility internationally when it comes to our intelligence. And I think we're taking step

back here again. And that is partially because of all the personalities and all of the decisions that

have come out, some of the things that Tulsi Gabbard put out on her way out, some of the things that Julia was just talking about now. And so my concern is that in the context of bringing us back to the context of the conflict right now, if we have credible reporting that in a case certain threats, that allies and partners may not take us seriously, if we need them. Because they'll say, well, why would we believe what your intelligence assessments are saying when we know all of these

things that, you know, we know what you've been that you, yourself, have been discrediting your intelligence. So, you know, that's one of the concerns that I have, especially in light of the cyber attacks and all of the things that are going on, all the ripple effects of the Iran war that we've talked about. And it's not just Iran, right? There is the China threat there, there is Russia, there is a whole host of things where it would be really great to be able to have credible intelligence

and be viewed as credible. And I'm just not sure that we're there anymore. So now, let me pull you in on this. Because I want to talk about the legal side of this debate over Bill Polti and his status for a week. But I also want to kind of go to maybe take this little step broader about kind of

“looking forward. I think there's a very compelling case to be made that what this administration”

describes as removing the deep state is really an effort to remove any sort of barriers to advancing what they see as, you know, they are preferred policy objectives. Even when those barriers are things like professional expertise or the informed views of people who've worked on this issue sets for a while. People on the other side will no doubt say and have said and will continue to say that that's actually not what these deep state quote unquote deep state is doing.

It's not professional judgment or expertise. It's an ideological agenda. And in fact, that's just opposed ideological agenda. Is there a way to start drawing that sort of line from a neutral principles perspective, whether it's through law and regulation or whether it's through something else, there is going to be this pressure that's compelling this point that people genuinely believe in, even though we might not agree with it, that well, there is an ideological, you know,

lean in professional civil servants. And that is hinders certain ideological objectives or aspects of them more than others. Is that just a byproduct of having a professional civil service? Is that just a tradeoff? We have to accept for the many benefits that may provide in terms of providing more expertise, a reservoir of institutional experience and knowledge. Is there a way to distinguish

“those sorts of considerations there? How do you go about parsing that kind of difficult question?”

Yeah, I mean, I think it's going to be a source of debate and we'll lead to lots of disagreement as it already has. I think many, many people would challenge the premise of whether there is an ideological leaning among career staff, even to the extent you think there may be that is different from the question of whether they are able to do their jobs neutrally because human beings are allowed to have opinions and still perform their jobs as they are required to do, which includes

respecting the policy decisions and the ultimate orders from whatever administration is in power. And I think that, you know, it's a very tired debate, frankly. So what I think is a little bit more interesting is as we've discussed in many, many other contexts, whether what we are seeing now with these mass purges, including at ODNI, but all over the place, as we've been talking about for months and months, whether there should be a rethinking of civil service laws and protections.

And that is partially what has come up in the context of these purges, particularly the latest

purges by Palty right before Clayton came in. So to answer your first question,

a little detour into nerdy law. But I will say that I was looking into this yesterday and no one else seems to have written about it. It was something that we were talking about on Slack and no one

which is a notoriously complicated and uncertain piece of legislation that has not been tested a

whole lot of times in court and therefore is the subject of a lot of scholarship and law review articles by people who think about this much more than I do. So caveat, what I am about to say with this is my understanding and the people deeply in the weeds on federal vacancies reform act should feel free to correct me if I misstate anything. But to do the quick detour, I'll try to keep it brief. But the conflict is and how this relates to the personnel matters that I was

just talking about is the question of whether there is any means by which individuals can push back on these purges. And so of course, as we've seen in other contexts, there is a question of whether

the employees who were fired by Pulti after he had technically ceased to be the acting.

DNI will have a claim that they were wrongfully fired and therefore have that servism mechanism

“to push back on the extent of the actions that are being taken. So quick, what is the legality here?”

The reason that Pulti ceased being the acting is because under the federal vacancies reform act, once the Senate is finished with the nominee, they have confirmed the nominee. That is the point at which an acting official is no longer acting. However, there is this weak break that you mentioned before he was actually sworn in. And during that lapse, it seems that there is no one who is the DNI. The provision of the federal vacancies reform act that comes up as

what then is possible to do during that one week gap where there is no acting DNI, could you go about doing these purges or were all of these people illegally fired? Comes down to some key language, which is the FRA says an action taken by a person who is not acting in the performance of any "function or duty of a vacant office" has no force or effect. And importantly, because this came up in our Slack conversations cannot be ratified, which means that

unlike other actions that are maybe done with dubiously, legality can be cured sort of by the next person who comes in and does have legal authority to act under the statute by its own terms if an action is unlawfully taken by someone who is technically not in acting. Official anymore, the next official who is lawfully allowed to take those actions cannot ratify the previous action, which means that the people who are illegally fired if this law applies cannot be

fired again by Clayton, at least by the terms of the statute. There are probably workarounds, but set that aside. The key language is function or duty. There's some lack of clarity on whether firing people is a function or duty that is exclusive to the DNI because there is case law that says that those terms of the statute only apply to actions that only the acting official could take. So, long story short, question of whether these employees who were fired between the time

when Pulti was no longer acting under the statute, but before Clayton came in during that

“week or so, 10-day, I think, gap. Question of whether they will have a viable claim that they”

were illegally fired depends on the language of the FRA. It's also notable that they would probably have to bring their claims to the Merit Systems Protection Board, which we've talked about a lot of times in other contexts, is very backed up. Lots of reasons to be concerned with that path, but it certainly seems to be a viable legal argument, and I do suspect that someone will bring it because there were, I believe, several hundred people that were fired under this latest purge.

Yeah, we should give a nod to Thomas Berry, who, at Keto at Liberty Road, I think the first analysis

that kind of pulled really ideas FRA issue for Pulti, which I think is a fair one. I'm not sure I follow, but I'll have to wait and see the idea that these actions can't be repeated by Clayton. It's been strange reading of the statute to say that this gives like indefinite job security to these people, although maybe that that's not an action to that can be absolutely ratified. It can't be ratified. I'm sure that there is some other way that they can be fired as a separate

action. Right. Okay, yeah, exactly. But it can't be ratified, so they would have to be refired. Right. I mean, that seems to like me as the bigger question is Clayton going to do this again.

“And maybe there's a good first test of Clayton, as to say, is this actually going to go forward?”

Although again, we have to note standard or Warner as an issue. The statement saying,

paper over exactly what this sort of issue is. We're going to, there's a lot percolating of the story.

“We're going to have to keep, and it has ramification not just for the intelligence community, but for”

government, writ large, because these are seen sort of patterns, or seen throughout different agencies in the National Security apparatus. Before the time being, we have one more topic we need to get to. I want to save some time for it, because I cut a topic out of last week, and I don't like doing that. I can't do it two weeks in a row. And that is, of course, our law firm friends at Paul Common Weiss that has found itself in the odd position of going from being one of the kind of

the liberal lines of law firms, you know, 15, 20 years ago, and more recently than that,

to now becoming this really, really emblematic case of the first law major law firm to

cave to the Trump administration. We have this incredibly in-depth account of it from the New York times. And then we really, with a lot of detail, we really hadn't seen before about the decision making that win into it. Now, the you are our law firm veteran here. I've spent, well, once I'm read a law firm, despite a couple of close calls since then, I have not actually stepped foot into a law firm and a professional basis. But you spend a fair amount of time there, and I should note,

not at Paul Weiss at an law firm that took the opposite path and fought the executive order and acquired a preliminary injunction, preventing it from going into force. But I'm kind of curious

“what you make of this story. You know, I think the New York Times account puts at a saying,”

"Man, this is a real court of like ethical reverse." This is a firm and not just a firm, but a person, Brad Carp, the chairman at the time who made all these decisions that really had trumpeted

a lot of its work opposing the first Trump administration, and notes how Carp has a picture of

himself with people who he and a firm had helped represent, a contesting different immigration policy and the first Trump administration on his office, and more marked on as a proud point, high point of his career. And how quickly they took this reverse tack that seemed to do the opposite in weird ways in part because of the different business structure of the firm. But we seen some counterneratives come in saying, "Look, this is risk management, this is what this

person do." He is a his responsibility in his corporate status was to the other partners of his firm, the equity holders, which in the law firm is the other law firm partners, or at least many of them, and that's who their duty is, and their duty is to keep the business alive and keep it doing business, and this was maybe made some strategic mistakes there, but the point as an ethical apps misunderstands the nature of his responsibilities. What do you make of that out of curiosity? How does

this apply to, you know, a corporate leader's generally, and potentially the legal leaders who have, you know, this unique profession that you and I are a part of, that plays this sort of unique role here. I'm just kind of curious what, well, how the story resonator didn't resonate with you. Yeah, I have so many thoughts on this one. I will say, I and our former public service fellow

James Pierce wrote a whole article when the law firm's first settled about the legal and

ethical risks that the firms were undertaking by engaging in these settlements, and some of those have just very much come true, not to self-aggrandize, but we were totally right. So, folks should look back at that because we really did try to explain why settling was so, so problematic, not just as a moral issue, but as a real cost to what law firms are supposed to be doing and a cost to clients and a cost to the rule of law and the justice system more broadly.

“So, if you want to read my rantings on that from several months ago, check that out. I'll leave”

it brief here. The thing that struck me, one of the things that struck me about this article, is it told the story of how this transition happened, which I think is was quite accurate in making the point that this wasn't a sudden turn at the issuance of the executive order. That, in fact, there had been major cultural changes of foot within Paul Weiss over the course of starting with Carp's tenure, but really accelerating significantly in the late 2010s and early 2020s.

I think, frankly, as a commentary, I think it overstated the sort of interpersonal dynamics between Brad Carp, who's a litigator and Scott Barche, who is a corporate attorney. But this is a very recognized tension in law firms between the ethos of corporate partners, so those are people who engage in transactions and other sorts of business deals versus litigators. litigators are, of course, the ones that fight things in court that tend to do the

pro bono work that is very celebrated, including in Paul Weiss's history. Has this very proud

close to it. They famously represented the Scott's Baroque boys and the 30s. They were the first to name a female partner to the first to hire black associates. I should say first big law firm, because obviously I'm sure there were many others in the country, but they like to take credit for it by phrasing it this way. They helped on Brown versus Board of Education, etc. I will say,

“not just sound a little biased coming from Jenner and Block. I think the social justice”

Paul Weiss reputation was overstated in the article as well. They have always been

understood at least during my existence as an attorney and well in law school. They have always been understood to be a very hard-hitting firm, much more business oriented, even in their litigation. They represented major banks and major Wall Street actors. They did do really, really good work, and I don't want to understate that, but I think the article was a little bit too rosy about the extent to which that was there from sort of reputation and understanding of self.

But as the article explains, the transition happened when Brad Carpe as part of his tenure as the

firm chairman decided that the firm should expand its corporate practice because corporate

practice is much more lucrative in most cases than litigation for a number of reasons just relating to the business of law. But those matters are extremely lucrative. Paul Weiss was a litigation powerhouse, but consciously decided under Brad Carpe's leadership to grow its corporate practice brought on Scott Barche from Kravath, which is probably the firm with the most strong reputation for being an extremely cut-throat corporate law firm. Barche, I had a reputation for being

really one of the top M&A lawyers, mergers and acquisition lawyers. In the country, so bringing him over to Paul Weiss was a big gut. They paid him millions more dollars per year than he was making at Kravath, which I'm sure was also many millions of dollars, so as a reflection of how much they cared. And by early 2020, I think 2023 is the corporate practice at Paul Weiss was accounting for 65% of the firm's revenue. And that is how the power dynamics shift within a firm

because the partners who make the most money for the firm then gets distributed among the partners. And this major metric among big law is to look at the profits per partner number as a

“metric of success, which insert my long rant about how it is a parent that success is measured by”

profits per partner, and that law used to be a profession that was not like the financial sector, but that ship has sailed unfortunately. So, you know, there were some really interesting sort of background stories here about tensions between Carp and Barche. There was a really very depressing

story about the firm's first openly trans partner named Lex Corberg, who had been an associate

at Paul Weiss starting as a first year right out of law school. It worked on the landmark Windsor case that went up to the Supreme Court that established the right to recognition of same-sex marriage, incredibly successful promising from the beginning made partner in seven years instead of the standard eight at the earliest. And that Barche came in and started to say, clients are going to be turned off by this person, and they really have to sort of stay out of

you and also the firm has to stop promoting its work that is potentially controversial, like it's for example, one case where Paul Weiss was teaming up with the ACLU on fighting a law in Idaho

“that criminalized doctors who provided gender affirming care, I believe, to trans children.”

So to wrap up, it's a good story. It's a very good article. They clearly did a lot of work reviewing documents that they were able to obtain from inside the firm, talking to a lot of employees, including former employees, several of whom left in protest after Paul Weiss reached this deal. I think it's worth reading. I think people should understand the dynamics as not just a an anecdote of something that happened within Paul Weiss as between these two people,

but rather as a representation of a much broader phenomenon of the tension between litigation and corporate practices and how that can really change the ethos and actions and decisions and willingness

to cave, but it was by no means the last. There were eight by the time James and I wrote

“our piece and I think there have been more since then. So I kind of curious Julia or are you just”

a feather if you had a reaction to story? For the simple reason that lawyers aren't naval gazing bunch, like nobody is quite a self-important as lawyers, except for me be journalists, try it law fair. We are really, really high on the hog on ourselves here at the intersection of those two things. And there is something like lawyers have professional ethics obligations that are

different. We obviously, you know, always from the tokeville on, we all know we're litigious

society and the has pros and cons. It's a lawyers to play his problem in a role. Visual and naive to think that law firms can have the sort of double bottom line nature, that some people, some firms, seeble, still believe about certain firms, is Paul Weiss's experience just representation of like, that's kind of the nature of the corporate form, like that that's pressure and maybe we shouldn't pretend like lawyers are all that different

“from other corporate entities, kind of I think would be a little surprised. We'd be less surprised.”

We're less surprised to see, you know, Amazon or all over. We're other, you know, it's really lucky you'd Martin to do similar sorts of things. Why would law firm be different?

Or do you have reason to expect more of our lawyers on the far edge of Julia, you have a reaction

to that? Well, I don't have anything legal to add to this. I could just broaden it that if anyone in these firms or other professions, parts of civil society thought that capitulating to the administration would somehow satisfy them while the, the leopard will delete their face eventually in the end and that's clearly what's happening here and that perhaps, you know, they should look at a broader interest rather than their quarterly earnings reports. I will also say from a, you know,

authoritarian consolidation point of view that going after the lawyers is kind of a famous thing for silencing the opposition and it's, I guess, not surprising that they did that here. If you're a person who's being persecuted by the administration, you need good legal counsel and they have systematically tried to deny that to people by going after these firms. And I'll just add, I mean, I agree with everything Julia said and she took all of it and

everything I was going to say made it more coherent. But the, the one thing is that it has been fascinating watching the copy and paste tactic that has occurred from law firms to regular kind of corporations, you know, defense industry, academia, think tanks, you name it, this is we've seen this across the board and that is the part that is I think the most, for me has been the most unsettling is just how quickly things changed in this administration versus even the

first Trump administration where there was a bit more of a willingness to kind of, you know,

see how things shake out and this time around within just weeks of the new administration being in it seemed like a lot of folks were folding across sectors and as Julia said, it hasn't really helped anyone because it turns out it doesn't really save you and you will continue, you know, once you give an entry, we'll keep giving more and this is where we are now. Yeah, I think at the fair point, the one thing I would say on this just before we wrap is

“like if we expect these things from institutions, you need to set up institutional elements that”

reinforces, you can have in limited liability partnerships, corporate requirements for a variety of things ethics guidelines, compliance with them and kind of enforcement mechanisms like maybe require a deal with the government to be voted on by a majority of partners instead of investing with the sort of leadership and that's something that I think probably just didn't seem like you would need before this last go around but I don't think there's maybe that's something that really

institutions that they want to be serious about these sorts of commitments need to start thinking about those institutional reinforcements, not just in government and private institutions too and when people are deciding which of those institutions to go work for and commit their careers too, that's the factor they need to take into account. Yeah, two more quick things, number one, yes, Naval Gazee but also very specific role in society and in a democratic society to uphold

the role of law to make our justice system work. I have much more to say on that but I won't. There's also the one factor that I do hope will help to serve as a lesson learned by the firms is it is as I said it is absolutely the case that the sort of corporatization of big law in particular has been problematic and is in many respects the incentives that come with that are inconsistent with the obligations that you take on when you are sworn into the bar. I mean it's really that simple

if you are focused on profits, you may experience tensions with your ethical obligations as an attorney that allow you to be an attorney and violations of which should disqualify you from being an attorney at a certain level and if that's the choice that some firms are making that's the choice they're making, I find it incredibly problematic and I hope they will be held accountable.

to reconsider is that these firms have often been wrong that it would be better for their business

to capitulate. There are many of the firms that have fought back have seen growth in their client base and in their profits. There are as I said there are a couple of things that James and I guys flagged that are really starting to unfolds including clients becoming really worried that the firms that did capitulate are no longer able to represent them in the way that they are supposed

“to because they're under so much pressure from the administration and that's how you lose clients”

and when you lose clients you lose money. When you lose credibility you're not getting new clients. There are all sorts of, even if all you care about is business, there are all sorts of business costs that I think in making the decision that it would be better for business to fold was incredibly short-sighted and I hope that they continue to see the costs of that and rethink in addition to the the leopard will eventually eat your face or the bully will ask you for more

money obviously again phenomenon. I hope they will see that they were wrong in this being the path to take to save the business. Well with that we are out of time for this episode but this will not be rational security if you're not leaving with some object lesson to ponder over in the week to come, are you what did you bring for us today? All right you're all going to make fun of me for this but let's go. Okay I have recommended video games in the past I'm going to recommend a board game.

I'm doing a board game too. I don't think it's the same one but I'd be very curious. It will be really fun if we did the same board game because it just has a dorkiest title. So I've been hearing a lot of buzz about this particular board game. It's called cozy sticker bill and it is absolutely delightful. It is not okay good. So it's a co-op legacy game which if

“you're me and you're a bad winner and a sore loser and you need to save your marriage you only play”

co-op games and so this is kind of a crossover between the Sims and Animal Crossing. It's basically

a legacy game that you play over 10 years so 10 sessions and you're creating your town each individual character that you add each little kind of you know institution that you add brings with it a storyline that you follow over the course of X number of sessions. It's kind of like if you're trying to play a legacy game but you don't want to be super deep into a sleeping gods or a pandemic legacy which we played during the pandemic with our friends. This is just a really easy, low-lift

thing to do. It's 30 minutes the rules are easy and it's just like a chill game you can play with while enjoying a glass of wine or whatever beverage of your choice. I love it. I love it. I love it. My wife and I play not cooperative games. We like to take a little card games with us when we travel because the only time we ever have a downtime to like do a little you know like like a monopoly go start us on this but then it turns out that it's actually not a very good game as we've

brought into our horizon now to other games but I like that suggestion to work that one in. Julie what did you bring for us this week? I don't see guitar. What no. I fully expect you to pull a

timbre you know from underneath the desk. I just hold that thought for a second. So with all the difficult

news in the war with Iran you know I'm grateful that we have a secretary of war who is laser-focused on the issues that matter specifically the low testosterone counts of our leaders. And so today I'd like to thank Secretary Hegsa for providing gender-affirming care to at least some of the United States military. Okay, right. It's not my actual object lesson but it's related. So this is my object lesson for those listening at home. This is a poster from the Central

Intelligence Agency from the 1950s that says we're looking for a few good women and I would like to suggest based on that object lesson that perhaps Secretary Hegsa instead of perhaps looking for a more high-tea military which is currently running into some trouble they might look for a more high-e military. Okay, I love it. I love it. I love it. Put it on a t-shirt folks right here. Well for my object lesson this week we I think are collectively getting back into the classics. Thank you

thanks to Christopher Nolan and the Odyssey taking theaters by storm. I don't know if you all have seen it. I have some up mix feelings but being completely honest but regardless I appreciate the people I gained the classics. I was a you know junior classesist and Greek and Roman myth nerd

“growing up and it made me remember that and being at my parents' house today. They made me remember”

an old board game that I actually found in their basement the other day and I should have brought up for object lesson but I'm just gonna mention it to people to find if you can. That's the game by Joe. Would you all remember this game as it were kids? How did they reprint in a while but you can find old copies around? It is a Greek myth board game. It's kind of like monopoly like it's

It's like an recall but it's super fun and it basically like pick one of the like Greek myth figures

“Roman myth I want which which name convention it uses and you move around and go through all the”

different myths but it's a great educational game for little kids who are into this and this is actually how I learned about and got into Greek myths when I was like six or seven. My parents got this like a scholastic school sale so if you can find by Joe grab it if you own the rights to by Joe this is a good time to reprint it. I'm shocked this isn't being reprinted right now like this is true. This is your moment guys get on it because kids will be into this family's will be

into this will be exciting but because I raised it I will actually go since that one might be actually hard to act on. I'll recommend the card game that I looked up the name I'm going to make try get it right that I do play with my wife now which is a fun matching game with beautiful origami art which is like really cool look I called sea salt and paper. It's like just a little deck kind of like complex a matching game that has like it's actually strategically fairly complex

and can play with multiple players and is different every time in my wife kicks my ass at it regularly. I only have the opportunity to play. I just recommend it. I used to be kind of hard to find but

“I think I just saw it in a Walmart the other day when I have to be in the Walmart for the first time”

in 10 years so maybe it's a bigger more out there game than I realized but check that one out if you can't find by Joe and with that Natalie what did you bring for us let's bring us home?

Okay well a second object lesson I'm going to sneak in I just finished reading Cersei which I

started reading separate from the Odyssey excitement set by Madeline Miller and I really love it it's you know I'm extremely late to the game it came out forever ago but really enjoyable uh this isn't the fourth object lessons to endorse Madeline Miller and Cersei really I know once Allen has done it somebody else did it I can't remember who uh so you were the fourth I believe oh okay sorry well I'm just which is just a testament to what a good book it is it's a

wonderful book yeah well also um it will give me a little credit for uh before I tell everyone to read to uh one very depressing article and one just very good article the latter of which is by our associate editor Peter Beck which is his dispatch from attending the first hearing of a court that has been in existence for 30 years and this was the very first time at had a case which is the alien terrorist removal court the second article um was a New York Times piece looking at the separation

“boards that are currently firing just tons I don't actually remember what the numbers are but”

a really significant number of transmulitary members and it is the story focused largely on an attorney who's been representing a number of these troops in their proceedings the common theme of both of these articles um which is as as as a regular listeners will know is a pet issue of mine is that in both of these contexts the luring is just so hard and so demoralizing and so underappreciated frankly in in both of those respects because litigating in an environment where the laws the rules the procedures

are so uncertain and everyone is sort of making it up as they go along is a terrible place to litigate and it is especially terrible place to litigate if you are the defendant or in the case of those who are being the military's trying to separate from their positions including several of whom are very close to retirement it's impossible and the the lack of due process writes just by virtue of the fact that these courts and procedures are new and being handled very badly is just a

a constant source of frustration and anger frankly for me as someone who litigated in quantummo where that was also the case everyone was making it up as they went along and it's just a real discourage of justice so read those articles enjoy that common thread and then go read Cersei with that recommendation that brings us to the end of this week's episode rational security is of course a production of law fair so be sure to visit lawformedia.org for our show page for linked to past episode

for written work and the written work of other law for contributors and for information and law fairs other phenomenal podcast series while you're at it be sure to follow law fair and social media wherever you socialize your media be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of law fair on patreon for an ad f version of this podcast among other special benefits the more information visit lawformedia.org/support our audio engineer

producer this week is known as band of go rodeo and our music as always was performed by severe

and once again edited by the wonderful gen patcha bath my guess Ari Julia and Natalie i am Scott our Anderson and we'll talk to you next week until then goodbye