Rational Security: “The Story of Three Warrants” Edition

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Ah, that's my orchestra of Rubberducks playing for me whilst I still can't bother. Yes, I have Rubberducks playing for me. I wish I could tell you that checking all tax and making any claims on the HMRC Act felt like this. But I wouldn't go that far. Although, it is easier and it will make you feel that little bit more on it. For your money and tax, download the HMRC app and be on it today. You're on it. Troy, we're excited to have you on, but I realised I seen you listed both as LT and Troy. What do you prefer between the two, which we be calling you? Both are fine. LT to family and friends. So I guess Lafayette is now family. We're getting there. We have to earn that status. That's what I remember doing our God in this. But I was Troy in court and to law enforcement friends, mostly because I would have this constant exchange where I would introduce myself as LT. And they would then name their rank, thinking I was Lieutenant. And so I would have to admit to stolen valor one and then to follow up with it actually stands for little Troy, which was much weaker and didn't really work with building relationships with my law enforcement community. Fair enough. I as a child who grew up during the Gulf War had this embarrassing realization very late in life that colonel Powell was not in fact a colonel. And that's not how you bring out colonel. I was like wait a second. He's like a general. It wasn't anything good to like high school that I put together like general. He's a general colonel. Is that like being a brigadier general? I don't understand. So you know, you're not alone in this. I'm very, very prominent notable admirable America has been in a similar position before you. Hello everyone and welcome back to rational security. This 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. This week I'm going to go ahead and call it now. We're going to call this one the story of three wards edition because we have a series of stories all centering on different types of wards in different context. We've got a phenomenal selection from the law fair team of legal experts and reporters and people with perspectives on wards from all angles joining me first for your back to back double duty of a type that I usually only impose on one Benjamin with us is none other than law fair senior editor Molly Roberts Molly. Thank you for coming back on the podcast after having just been on last week greatly appreciate it. There you go. This is this is like I mentioned you are doing a brief reprieve. So now people can true Molly Roberts fans can just tune out for the next couple of weeks check in sometime in March when we'll have you on as you've earned a reprieve now for a couple of weeks off the show. Also joining us is law fair senior editor Mike Fimer back on the podcast Mike. Thank you for joining us on the podcast as well. We're happy to join wonderful wonderful thought to have you on and join us for the first time on the podcast is Troy Edwards law fairs newest edition as our new latest public service fellow Troy thank you for coming on the podcast. Thank you so much. It means a lot. We have a lot to talk about this week. So let's go ahead and get in the substance. We've got a couple of naughty legal stories that have popped up this past week. We've got a lot of pretty unique perspective and expertise to bring to bear on them. So let us get in our first topic this week. Tulsi went down to Georgia. She was looking for a vote to steal this past week. The FBI executed a warrant to search Fulton County's election center for ballots and equipment related to the 2020 election with the help of an unlikely senior administration official director of national intelligence. Tulsi Gabbard who's reportedly there in person at the order of President Trump. In fact, she confirmed as much observers are concerned that the search is the beginning of a broader effort to reliticate the 2020 election. Potentially have impacts on the upcoming midterm elections, especially as President Trump has recently called for Republicans and Congress to quote unquote nationalize elections in at least 15 places in it before November. What do we know about the legal basis for the search and what does it tell us about the Trump administration may have planned for later this year. Topic two, I hear the jury still out on the fourth amendment. Over the past week whistleblowers have revealed that ICE has issued a series of internal memos to agents advising that they do not need judicial warrants to detain or search the homes of people suspected of being. Undocumented immigrants and subject to final removal orders fire call quickly instead ICE has attempted to sidestep the regular judicial process by indicating that agents only need in administrative warrant a type of internal document to execute those sorts of searches and those sorts of actions. It's a controversial without almost certainly be challenged in court. What do we think of ICE's decision to shift towards this policy? Where do we expect it to go from here? Topic three, ex post justification. Last month the FBI conducted a search on the home of Washington Post reporter Hannah Naitinson as part of an investigation into a legit leaks by defense department contractor during the search agencies. Naitinson's personal and professional devices drawing concern from media outlets and civil liberty groups over the potential first amendment and privacy violations. Magistrate judge has not ordered that the FBI not access Naitinson's materials, at least for now while some of these issues are litigated. How should federal law enforcement balance the need to conduct leak investigations with press freedoms and is this case on the right side of the line? So our first topic is this pretty remarkable search that took place in Georgia last week. I think last Thursday if I recall correctly. It is a odd set of characters at least it's a pretty substantial development. Molly you along with Troy and a couple of other colleagues wrote a phenomenal piece on this. Bring us up to speed. What do we know about what actually happened? What was took place in Georgia? And where the story has evolved since the search took place since you wrote that piece with the current statuses of these materials and how Georgia state officials are reacting. Yeah, so as most people probably know, Trump has been obsessed with Georgia ever since the 2020 election. That's where he tried to get Brad Raffin's burger to quote unquote find 11,779 votes and he was obsessed with Fulton County in particular. Rudy Giuliani ended up falsely accusing election workers of rigging the vote there. And essentially this obsession has continued up until looks like now in Davos over the weekend prior to this search. Trump said something along the lines of the 2020 election was so corrupt so rigged and people are going to be prosecuted for that pretty soon. Then lo and behold the FBI appears in Fulton County at an election center there and ceases a bunch of ballot boxes and other elections materials executing a search warrant and director of national intelligence. Tulsi Gabbard is on the scene, which is highly, highly unusual. So in our piece, we kind of walk through what could this possibly be about what are the criminal statutes that are in the search warrant and was Tulsi Gabbard there. Since then, we found that a little bit more about why Tulsi Gabbard is there. We found out first of all that she has been looking into the corrupt nature of the 2020 election, but also she said she was there at the president's orders. And we found out that the president was on a phone call with Tulsi Gabbard and some of the FBI agents who were involved in the search the day after the search. So another example of something highly unusual. Those are two big developments and the other development is that the local officials are suing to try to get some of these materials at least back. So I think that basically gets us up to speed on where we are now. So there's a lot of pieces of the story to break down. I want to get to Tulsi's role. Before we do that, let's start with the more legal technicalities and Troy folks who haven't met you yet as well as new as number of the law fair, but they may not know you are an experienced former federal prosecutor. Among other roles that you've played in the past. So talk to us about what we know, I guess, first of the legal arguments behind this action, what the alleged crime is. And if we don't know where we might make an educated guess about what they appear to be doing, that seems like the first order question here is, is this about a criminal prosecution as president Trump has promised or is this still more nascent? Do we have a sense about where this investigation is going? Yes, so I'll start with the statutes. I mean, what's interesting about the statutes is both what they alleged when the search warrant, you know, mentions them in attachment B and we can kind of get into that how attachment A and B work, but also how the statute limitations works and whether that's even relevant in a search warrant. And so, you know, the first statute 52 USC 20701, which is just this, it's effectively operates as a retention statute and can operate as a misdemeanor given the stat max and the retention. One of the questions is, how does any of this operate within the statute of limitations if the 2020 election was over five years ago, the underlying premise there being that typically there's a five year statute of limitations on these. This 20701 retention statute requires officials to retain the documents for 22 months after the election. And so, take it from November of 2020 and you jump ahead 22 months and then you add five years from that. So September 2022, five years from there. So that actually makes a little bit of sense to me why this would be within a statual limitations period. What doesn't make a ton of sense to me is the next statute, the 52 USC 2051, which prohibits particular individuals that are defined in that statute from engaging in particular activity of defrauding an election or defrauding others from a free and fair election through a number of actions that are listed in the statute. That doesn't have that odd 22 month surplus from the date of the crime or the date of the election. And so, I don't know the answer to why that would be within the statute of limitations now. There's an interesting question to me, which I don't know the answer to, is this relevant in a probable cause analysis from a magistrate judge? I mean, the operative question that a judge is looking at is, is there a probable cause to determine whether or not there's evidence that a crime has occurred in the location that the government is seeking to search. And so, maybe there's case on this I'm not familiar with, but you can see an argument being, it doesn't matter whether there's a statute of limitations problem or not. The magistrate is answering that particular kind of question. And then later down the road, the government can have to confront a statute of limitations problem. How would this interact with like a conspiracy charge or something? Because in theory, you could say maybe these actions were, you know, a step as part of a larger ongoing conspiracy that maybe extends through the midterm elections or to 2028. I mean, we've seen conspiracy be used to, you know, charge a variety of actions that were sometimes it's hard to pin down the action where there is questions in a variety of context. Is that something that could be employed here? I know they didn't cite the federal like conspiracy statute necessarily. Does that mean they're definitely not at least a legit conspiracy at this point? No, I mean, look, I think there's two things going on there. One is how, if at all, what a conspiracy investigation impact the statute limitations to is whether or not they need to even put that statute in the search warrant. On the latter question, I mean, look, the norm is you would put the statutes that you're investigating, particularly if you've developed, you know, enough for probable cause to put those statutes in. You don't typically pick and choose which statutes and hold some to the side. But I don't think there's a requirement. Certainly there's no requirement that the government can now no longer investigate conspiracy to commit one of these crimes, which in looking at the statutes, it doesn't appear to be any kind of conspiracy language in them. But that doesn't stop the government from then saying, okay, well, under 18 USC 371 predicated on one of these two statutes, somebody could allegedly conspire to commit them. And so, sure, the government could investigate that even if it's not in the search warrant. And then on that question of how does that interplay with the statutes limitations? It's an interesting question. I think the answer is that's one way that this could survive, right? As if the allegation, I think Molly put quite a helpful analysis on this and the other concept of this big conspiracy out of Florida. If you allege some conspiracy and the offenses continue throughout the conspiracy, even beyond the traditional statutes limitations, and in some circuits, that can include covering up the conspiracy, which would be interpreted as in furtherance of that conspiracy, then that could potentially extend that statutes limitations or not trigger the start of it until later in time. Yeah, I was going to bring up that big conspiracy, grand conspiracy, as it's come to be called in this case. I forget the term that we're using. It's a big big isn't as strong enough words. It's just being beautiful conspiracy. Yes, the BBC. But in any case, yes, I was going to bring it up and it's a little out there, but I just kind of an administration where some out there stuff has been happening. It could be some explanation for why Tulsi Gabbard was there, but you don't really need this to explain why Tulsi Gabbard was there. There are various other reasons. But in any case, the grand conspiracy is basically this investigation that appears to be going on now in the Southern District of Florida that starts with something Tulsi Gabbard is very involved in, which is alleging that intelligence officials in the Obama administration conspired to create these misleading reports, assessments of Russian interference that didn't tell the truth that said that Putin was trying to help Trump, but actually he was trying to help Hillary Clinton, and it was all an effort to smear Trump. So she released a bunch of documents Tulsi Gabbard did over the summer to that effect, and there were investigations into John Brennan, the former CIA director in particular, but it seems like a bunch of related investigations have been shipped off to the Southern District of Florida. And that what they may be attempting to do there is pull together not only these 2016, 2017 activities related to the 2017 intelligence community assessment of Russia's involvement in the 2016 election, but also matters as distinct as the search of Mar-a-Lago for classified documents that was part of the Jack Smith case there, and then they might pull into that. To basically anything that that's happened to Trump, so the idea here would be was part of this plot, because eventually what they would theoretically allege here is a conspiracy against rights to deprive Trump of his ability to run for president and voters for him of their ability to vote for their preferred candidate. So the idea here would be would you pull in also what happened in 2020 in Fulton County was that part of this vast left wing conspiracy to deprive Trump of his ability to appear on the ballot. So that's the thought there it's crazy, but they're looking into it. But that craziness actually brings into play a potential different avenue than conspiracy through which they can wrap this all up into one overarching theory of the case. And it involves a statute that at the state level was used against Trump himself in Georgia, and that of course is the racketeering it racketeer influence corrupt organizations act. And while they would never use this phrase, we know that the Trump universe very much likes to try and hoist people on their own pitot. And I can see them trying to use Rico as the framework for getting this conspiracy into one indictment. And what Rico would offer them is that the statute of limitations for all predicate offenses is told so long as one of the individual predicate offenses is within the statute. So it sort of gives you a mulligan on stuff you did not charge within the anticipated timeframe. Interesting. That's really interesting. So it does seem like at least unless they're hinging on the reporting exception that Troy laid out for us that extends to 2027. If they're going to bring some of these other allegations in, they're going to need to have some sort of broader conspiracy or Rico, which is kind of like a roughly conspiracy structure. Umbrella claim that's going to bring in a lot of these other acts and this could be who knows how broad you try to make it probably, what if we're facts you're going to pulling out. I guess it's possible a court could look at that statute as potentially some kind of continuing offense. So you know, it's not just an offense that, you know, I've robbed a house that houses now robbed. I leave that that is done. But if something can be interpreted as a continuing offense, it's a little bit like conspiracy. But if this, if you can defraud through this second statute, this felony statute that's alleged in the search warrant over time. And it's not just multiple counts, but it's one ongoing fraud. And someone has recently just been making this up testified about that topic out of Georgia under oath. And the federal government wants to allege that that part of that testimony was false or misleading and could tie that into that's an ongoing continuing offense. I mean, that's another way to potentially extend that statute limitations. Yeah, it's fascinating. Well, so we'll have to wait and see more as we get more details about what exactly if we get more details there anticipating about this. Well, let's go to the other part of story, which is Tulsi's involvement. Mike, I want to come to you on this is obviously you're somebody who could spend a good part of your career navigating that kind of line between federal enforcement and intelligence community. How here it is this? I think it's we can all agree. It's weird to have someone of that level hang out with FBI agents doing a search generally. That'd be weird if it were the FBI director. I suspect most of the time, right? Like even somebody in the bureau, that's just something you usually see the heads of agencies walking around doing. But what does it tell us that ODI and I generally appears to be involved in this does it suggest that there is part of this is some sort of thread of allegations of foreign involvement or something that might be more conventionally under what the ODI and I's jurisdiction. And I use that term technically, but kind of conceptual jurisdiction subject matter area or is it just much more of a something a little more ad hoc. And is it a problem like are there legal or practice barriers that usually would would insulate those people from the sort of work. It's problematic for quite a few reasons, which we'll get into, but I think it's best thought of if you're looking for a simple snarky one sentence explanation as exhibit 2,347 in the erosion of norms. There is nothing in the statutory charter, which gave rise to the office of the director of national intelligence, nor in executive order 12 triple 3 as amended in 2004, which gives the DNI any role whatsoever in law enforcement operations to allow somebody who does not normally have that privilege. On the scene of an active search creates a whole number of problems that could very well come back to haunt the prosecution in whatever this case turns out to be. And this is just going to sort of get into the technicalities of what happens at a search or a crime scene, but essentially your number one goal as an investigator outside of just gathering evidence is to preserve the purity and sanctity of that. And that means that from the moment you arrive on the scene, anything you touch has to have a chain of custody. In other words, there is an actual form that the agents doing the search will fill out that from the start of the search, every single thing they collect has to be in the position of somebody who is able to testify to it at trial. Or it has to be secured in an area where no one can conceivably get to it, in which case the most recent person on the chain would still be considered the custodian. We don't really know what happened on this scene, but if at any point Tulsi Gabber was alone with evidence, the prosecution is really opening itself up to a host of motions that could do everything from just getting that out of the way. Just getting that evidence tossed out to putting Tulsi Gabber in a position where she may have to testify about what she was doing and why she was there. And, you know, I'm sure LT will agree with me. You generally don't want the senior most intelligence official of your entire country testifying an open court because best case scenario you have to go through a seepah hearing and really narrow the scope of what they're able to talk about. And that's time consuming and difficult for most jurisdictions. Or, alternatively, you get her on the sand and she has to answer a whole bunch of questions about things the government would rather not reveal in public. It's really a no-win situation for them to have her there. And, you know, I'll just give you an anecdote to describe how rare and just weird this is. I had to brief the director of national intelligence during the first Trump administration about an investigation that we were making public. And, this was very unusual, but the indictment when unsealed would definitely impact intelligence community equities and have ramifications outside the country. So, we felt the need to give the DNI some sort of heads up as to what was happening. But, when we scheduled the briefing, we did not tell anybody at ODNI what it was about. And, we arranged things so that the briefing would start literally one minute after the indictment had been unsealed. In other words, even though the person needed to know about it, we were not willing to transgress the non-permeal bulberier that existed normally between the ODNI and law enforcement operations. This is, I'm going to temper my language because we're a family show. But, this is pretty beyond the pale of what would normally occur at any scene of a search warrant. And, one aspect that she really leaned on really heavily in her letter, so we should note the Democratic chairs of the House Senate Intelligence committees have to their credit and raising a big stink about this, made a couple of very targeted inquiries to the ODNI to the director, who then responded with a letter that was made public, I think, bleep by her office, which said essentially, gave a couple of justifications for argument pointed to various executive orders, talking about national emergency declarations about. Election interference, things like that by the Biden Obama administration. But then leaned on this idea of the MOU between ODNI and the FBI, noting that senior FBI officials that a lot of regional FBI offices are the domestic DNI representative term that they described. Does that do anything to actually justify this? It's a total non-sequitor on her part. What the DOM DNI is it's abbreviated is, is essentially just somebody who convenes in meeting a couple of times a year to make sure that all the agencies within any given region are on the same page with respect to matters of national security. But I think it's very important to note that when the FBI partakes in those meetings, it is doing so solely pursuing to its national security authorities, namely executive order 12 triple three, and not any of its law enforcement authorities, which are granted to them by legislation. So she's mixing apples and coffee mugs like it's just it doesn't really make a lot of sense and I could see Mike your brain Kaiser, so saying your metaphor there as you look around your office desperately being like apples and. Exactly. Yes. Yeah, it's it's just this that argument frankly is the argument of somebody with no experience in the matters they are discussing the whole letter really read like that to me as somebody who was vaguely familiar with some of these contours of but interesting there is a lot of stuff being thrown against the wall in this letter, which is not an uncommon office category tactic, I would say really by lots people, but but including by this administration, which is you throw a bunch of related things that kind of look like they may seem a good thing OK against the wall. And that really is what this reads as I basically says there are a bunch of executive order about how there's you know national security implications of election security obviously the audience eyes, the leading for intelligence coordination for that OK, that doesn't have anything to do with this. And then you've got this DNI you know rep situation it's a kind of odd letter and it's definitely struggling a little bit, which is why I thought it was kind of interesting that they seem to be putting it forward so publicly and leaning on it, but but who knows particularly when they've spent time dismantling a lot of the apparatus to make our elections more secure. That is yes there's a little bit of attention there as well as far as we're really going to making this is such a essential sort of national security priority. It's worth noting that one of Tulsi Gabbard's first actions upon assuming office was to dismantle before and line influence center at the ODNI so there's more than a bit of irony that she is now staking her claims on foreign electoral interference to justify her presence at a crime scene. Yeah, absolutely. Troy let me come to you on some of the points that Mike raised about both the challenges that Gabbard's potential involvement might raise if there's were a result in criminal prosecutions, which is not clear will at this point, although the president's really suggested as much in public remarks. By one lean into another aspect of this as well in terms of legal uphill battles, there's also a constitutional dimension to all of this in that elections generally both presidential elections and midterm elections are really run by the states predominantly there's interfaces with civil rights law, there's interfaces with you know certain federal equities that certainly come in, but the real weight of authority and the termination particularly for things like determining the outcome and counting things constitutionally is vested with state authorities. So I'm kind of curious about how that enters in to a lot of legal actions. The administration might be contemplating about how to go about this before we even get to the suggestion present Trump is raised about federalizing any of this that's even feasible, even if they're talking about potential legal actions flowing from this search. It strikes me that there's a lot of areas that's kind of fighting its way uphill if they didn't want to do that seriously. Yes, I mean, there's a question of timing too when the right time would be for Fulton County or Georgia or whoever the officials are that to launch something like that. And I think what you're getting at is this kind of concept of the 10th amendment and kind of keeping the election clause and everything that flows from the election clause within the proper body, which is the local or state government. And Article 1 Section 4 clause 1 of the Constitution makes clear that these elections ought to be run by these local bodies. Of course, it says I think that Congress can step in and enact legislation to talk a little bit about the outer parameters of how they're run timing wise mechanism wise, but certainly the weight of it states that this power ought to be reserved for the local and state governments. And so the question is if Fulton County, for example, I think Molly mentioned that they've filed something against this search warrant. My guess is it's under rule 41g to try and okay, and I suspect it's probably not still under seal and it probably will come out soon. But my guess is they could go light or heavy right in the light is we just want the records back. Take these physical records, you took these items from us, rule 41g allows us to now use the weight of the court to say, okay, we want them back. One part of pushing back against a criminal search warrant would be to say that the government has not only overstepped, but they now have access to information that's irrelevant to the investigation. And so they can say, look, it was an over broad seizure. You took the physical ballots. There are digital versions of all of this that you also took, which are duplicative, keep those give us the physical ballots, which are extremely important to maintaining elections, which as you note is reserved for them under the Constitution. That's a lighter touch. I think the heavier touch, which would probably be wise to wait till later, if the case proceeds, is to say no, look, the search was just unconstitutional. And under the 10th amendment to step in and infringe upon election integrity in this way, you have now infringe upon a power that is reserved for our area of the government. I think that's probably not a successful attempt to push back on a search warrant that a magistrate judge has found probable cause for, but certainly a potential tool for them to use if the case were to proceed. But something you also mentioned that Mike flagged was what to think about the DNI being present. If the case were to proceed, my national security prosecutor's senses are tingling in that not only could the DNI be a witness like Mike correctly pointed out, but it also opens up any future prosecution to an allegation from a smart defense counsel to say not only is that a witness, but the intelligence community is not the only one that is being taken to the court. The intelligence community writ large now as part of the prosecution team. And that's terrifying because the underlying premise of the tool that the government uses, which is the classified information procedures act to navigate their way through public cases with classified information. One of the underlying premises is the intelligence agencies are not part of the prosecution team. I mean Mike put it well right the FBI is uniquely situated to be both criminal law enforcement, but also in an intelligence body. The second we start bringing in these intelligence agencies into the fold of a prosecution team, the records that these intelligence agencies have their communications that they have similar to the FBI when we bring a case are now potentially exposed to discovery rules that a prosecution team is going to have to navigate and they can't just say well, seep, this classified information procedures act will do a potential search request to the agency. We don't normally have to, but we'll do it because that's what we do in national security cases, which would require us to reach out to that intelligence agency and say hey, we're potentially bringing a case against this subject. Here are identifiers will you scour your holdings for us to come as the prosecution team to come to your place as not the prosecution team review those materials for discoverability and then will you navigate the seep a process. That's challenged if the intelligence agencies are now in the fold as part of the prosecution team hard for me to see how prosecutor looks at defense counts on a judge in the eye and say they're not if the DNI is unseen using her phone on a criminal search warrant. Yeah, yeah, really wild to say nothing of the fact that what people don't realize is the government doesn't always cooperate with itself and intelligence agencies tend not to be happy about opening up their various files to the Department of Justice for PSRs. I as I'm sure LT has as well have worked individual cases against a single individual not an overarching decades long supposed conspiracy. We're negotiation can take months just to get the prosecutors in the door. All fair all fair. It's just a fascinating set of implications and an essence to which it seems like this action which by gober's own account was at the director of the president who personally wanted her there. It's just strangely shooting itself in the foot something not unfamiliar to watching this administration which I think brings me to the closing question before we move on to this topic which I want to turn to you on Molly. Although you know Mike dry I want to definitely know you guys to weigh in as well which is that what is this all tell us about what the Trump administration is thinking about for midterms in for twenty twenty eight potentially. The president's been very vocal about corruption and elections he now is saying oh we need to take federalize elections at least fifteen locales I don't think we know exactly which ones I was on dawn buggy knows day buggy knows. Podcasts and he's now restarting the FBI but notably a that would be pose real constitutional questions if they could do it be there's very little audience for this even among. Republicans in Congress John thunes pretty much already shot it down a number of other prominent Republican already said this is just a no go we're not going to entertain it seriously. Even if we could and they basically say we can't because not constitutionally viable. There are things that the executive branch can do or could do hypothetically but many of them are going to raise legal challenges eventually that doesn't mean it can't show a ton of chaos into the next. You know what what is this tell us about where the game is going with the administration and where exactly that gets us I'll share my kind of like quick sense of this but I'm curious whether you agree is that this seems like. Another case administration struggling to do something because the president wants it. They follow is directive because they understand this administration the route to power is saying yes to the president not more specifically not saying no to president finding way to kind of do what he wants enough to show it. And at least this was volatile situation where even if they had a strategy that could be viable they're undermining big aspects of it by by this kind of ill consider not thought through steps of what they're doing things. And that makes it more like in some ways less dangerous because I see it strikes me as less likely they're going to be able to succeed at something broad systemic in a way that would really disrupt the outcome but kind of more dangerous because they're really grasping at straws and incredibly not risk of first like they're just very willing to do lots of things and there's lots of things they can. Break and hurt and frankly people they can break and hurt along the way so it I don't know i'm both i'm both like more confident that they're not going to be able to steal an election but less confident that they're not going to try and that is going to be really painful to work through. Am I too pessimistic not pessimistic enough like I'm just curious where you come out on that. I've just initially saying that your version of what's happening here is like the serious least scary version right they're just trying to satisfy one of the. Awful whims of the president and it does raise the question to what extent is this backwards looking he's mad about 2020 to what extent is it forward looking he wants to do something in the midterms or in 2028 but but let's say it's not just backwards looking let's say it's forward looking and how frightening is that. Is that i don't know he says he wants to like you said nationalize elections federalize elections the fact that he said in 15 places was a little ominous to me suggested that he has there's a list somewhere right exactly i was like i need to go on all the right wing podcast and here where someone says what the 15 places are because it's got there it's got to be out there said he got that somewhere he didn't just like randomly say the number 15. But although maybe but in any case i think that i think a few things you know thing one is there's obviously a question about how much authority congress does or doesn't have to write rules related to the elections because yes the elections clause gives a safe authority but it also gives congress some ability to oversee that so what are they able to do what are they not and there's it's a live issue now they're talking about the. Save act which is what i believe carol and love it said was what trump meant when he said nationalize elections just make sense because it isn't a nationalizing elections thing that that was her cover for him so that's. That's something they're discussing having to do with preventing non citizens from voting and then there's an even more aggressive bill and play to i think that has to do with nation wide voter ID and of course there's the executive order that. The president issued late summer i think that's under litigation right now but having to do also with making it more difficult for people to vote. But you know i think there's a lot of like he can't do that and like yeah there's a lot of stuff he can't do but it doesn't mean that he isn't going to try to do it and i think the fact that he just went to a county and seized a bunch of ballot boxes makes me be like why wouldn't you try to do that again right after the. Election happened why wouldn't you try to you know send troops in without a search warrant i mean yes it sounds very doomer and but but i don't think considering the worst case scenario is. Completely crazy here and and then where does that leave you so you know to what extent is this just a. Test run for how far can we go when it comes to seizing materials related to elections if Brad raffensberger isn't going to find the votes for me can i go in and find the votes myself kind of thing. I don't know i think it's frightening. Yeah i mean the bottom line from me is when i look at this it's just another example of the damage to each of the institutions involved. I am sure there are a number of folks at odin i who are shuddering that the dn i was at the site of a criminal search warrant because of the exposure to their equities and the importance of their work. i'm sure the FBI internal rank and file are shuddering that the president and the dn i put line agents in a position to have to be in a room. That the president is calling in and giving them some instruction or order. And pep talk as if it's the halftime of a football game. And then i'm sure u.s attorney's offices that are involved in this are shuddering the rank and file that they have to now have their institution involved in what is potentially. You know an abuse of the discretion that is reserved for prosecutors so i don't know where it's going to go short term or long term but i know that it's just it's significant damage to each of the institutions involved and allows some of the american public to show their shoulders and say. You know these are the things that happen you know intelligence agency is FBI the president they all just kind of swirl around anyway and that's just so far from the truth when it works functionally. Hi there billy hindle here the voice of Alice dire in the Magnus protocol the sequel to the award winning horror anthology the Magnus archives which is currently sponsored by audible recall is a gripping psychological thriller by JD Kirk available to listen to now on audible narrated by James McAvoy and perfect for fans of Stephen King JD Kirk delivers a terrifying blockbuster which shines a light on the hidden evil within. A relatable every man is thrust into an extraordinary horror that feels disturbingly close to home an unreliable narrator is taken to the extreme where nothing not even your own mind can be trusted listen now on audible see audible dot code at UK for turns. This is your business this is your business super chance with the help of zero counting software. This is managing cash flow. This is managing your cash flow with the help of zero accounting software these are your customers paying you these are you. Customers having more ways to pay you. What the help of zero accounting software. This is your business super charged with the help of zero. How you. Store you cash flow giving you. You. Making. Super charged. Store you. Store you. your business today with the help of zero. Search for it with an X. Master any task with the all-electric Ford E-Transit Custom Limited with lower running costs for your business. Selected dealer stock is now available with 0% APR on four-year Ford options and a 7,000-pound customer saving until the end of March at participating dealers. Search for it E-Transit Custom. Ready, set, Ford. Finance, subject to status. Well, let us go on to the second warrant in our series of Orants today. This is not a new type of warrant. It's not that, but the warrant has gotten a lot of new attention. That is the idea of an administrative warrant. A practice that has existed for a while now has been used particularly frequently in the immigration context for a while now. But is getting a new notoriety because of the enhanced status and authority ICE has been claiming it gives and intersecting agents it gives in Minnesota and elsewhere. Mike, you have experience with these. Talk to us a little about what we know about administrative Orants and how they're being used and how that departs from what we thought we knew about administrative orants. Yes, administrative orants are actually pretty rare, which is a direct result of the sanctity with which this country, all three branches, have traditionally viewed the Fourth Amendment. They're essentially creatures of statute that allow individual agencies to obtain very specific categories of things without having to go to a federal judge. So I'll just give you some examples at them because they really are uncommon. Within the FBI, there are only two violations for which they are used and that is crimes against children and health care fraud. Health care fraud because it is a very documentary heavy offense. Crimes against children because oftentimes you need to know, for example, the user of an IP address or somebody's location in order to stop imminent harm to a child. The Secret Service similarly is allowed to use them for cases investigating a threat to the president. Once again, you might have to move quicker than the traditional process allows and as long as you're not actually making entry somewhere but simply getting information or documents, the balancing of equities comes down on the side of letting the Secret Service get what they need. ICE has administrative orants traditionally solely in order to get documentary evidence. In other words, ICE can use an administrative warrants to get something like employment records from a corporation that they think is using undocumented labor. It's not meant to be an aggressive tool. It's sort of meant to help them funnel their energies into the things they should be doing by quickly separating the work from the staff. In other words, if they suspect a factory or something that employs 500 people is using undocumented immigrants, they get the employment records, they get the tax records, they see that no, there is paperwork for everybody there. Okay, we can move on to the next thing. I spent 16 years in law enforcement and I was a lawyer for about five years before then. And neither I nor anyone I know either who is an investigator or in the Office of General Counsel or a Federal Prosecutor has ever heard of an administrative warrant being used to justify making entry in somebody's home. This seems like a pretty clear cut violation of the Fourth Amendment to me and I would very much be interested in seeing the legal justification that DHS or GC used to reach this conclusion. Yeah, I want to ask you about this Troy from the kind of prosecutors perspective because my non-non-proscutor but still a lawyer perspective and having worked with prosecutors occasionally at various states of my career, you know, I look at this and I say, man, this is a really risky thing to rely on if you are going to try and prosecute anybody under this because if you have unlawful search and seizure, you collect evidence that you're going to use, all that stuff can be excluded at a certain point if you find this constitutional violation. But then this is immigration context, really, right? You're just trying to get these people in custody to remove them. So does that matter as much to the law enforcement, not just law enforcement, to the agencies that are involved here at ISTA, DHS, is this a way that they can get hands on these people and is there no real risk that once they accomplish that, that that's going to interrupt their objective to remove that person from the country. Is that the calculus here or is there more kind of hitches that they may yet encounter than they expect, adopting this sort of strategy? Yeah, another way to frame in my head is how do you frame the externalities to these folks and the externalities to me are, well, I don't want to speak for DHS or ICE. It's hard for me to see what their equities are right now. But I suspect the equity is efficiency. And so to put my hat on as if I'm saying why would you use these administrative warrants? I mean, the pro is they are efficient. They don't require you to go to a separate neutral body. And you have somebody in your office. I think I understand that there are a number of officials and titles across DHS that have the authority to sign these kinds of warrants. And so you can get them and go. And so I understand from a logical perspective the push that direction, the externalities that they may not be envisioning because as you note, right, there's less the exclusion principle here. There's not going to be likely fourth amendment criminal perspectives here stopping them or pushing them or preventing them from bringing a case. But there's kind of the broader public trust cost, which I think they've lost already. So it's possible that that externality is already sunk in. But another is financial. And I think that's a really interesting and hard question is what remedies are there for folks to bring and how do those costs get imposed upon ICE and DHS? If the Bivens doctrine or this kind of area where private actors, private folks can kind of bring legal action to impose costs upon the federal government or an agency in the government for wrongdoing is paired down over the years by Supreme Court opinions, so much so that the, I think the push now has just been from the Supreme Court to say Congress needs to act to legislate certain powers for private actors to bring. If that's the case, then it's hard for me to even envision the financial costs or externally that can be shifted upon ICE and DHS for engaging in these warrants. And so I think that is the biggest area though that I think that the costs will arise from. I mean, I guess in theory, you could see courts encountering these things. You could see, you know, counsel for immigration groups or people have a, you know, plausible case for representing clients that have invested interest in future applications or reliance on these things seeking injunctions to stop ICE and DHS from relying on them, which then could them with like contempt proceedings if you feel are to abide by it. But we know that hasn't, at least we've faced seen compliance issues according to the district court itself in Minnesota around those things, far from perfect compliance, although maybe that will get better. Though that will introduce an interesting question. And Mike, you brought up the question of kind of what the legal justification by DHS, you know, OGC's analysis is that apparently underlies this memo. I suspect that would force to the surface what that analysis is because it will allow DHS to have to face an arena where they say, well, no, the injunction isn't proper. Here's why the legal justification, you know, it makes sense. So my perspective is, from a prosecutor's perspective, at least, I think this is the wrong reading. But I think the reading, my guess is the reading from DHS OGC is to take this 1960 Supreme Court case, or Justice Frankforder, and I think Abel mentioned in Dicta that they wouldn't reach this question of whether an administrative warrant would allow folks to enter the home or would be proper outside of a judicial warrant, but then allowed to, wrote a couple sentences that kind of talked about the importance or history of the use of these administrative warrants. My guess is that Dicta, which spawned recently certain district court opinions, one in Texas, one in the central district of California, to take different opinions on how to read that Dicta. Central District of California saying that Dicta means the administrative warrants are not favored by the Supreme Court in place of these judicial warrants. The Northern District of Texas opinion saying the opposite, saying this Dicta indicates to me that, you know, it is favorable. I think that's likely where this battle is playing out. I don't mean to justify it because I think it's wrong, but I think that's probably where this friction is coming from, and my guess is DHS OGC might be leaning into that friction and saying, well, we take this side and we'll test it. Because if my memory is right, the memo specifically says the central district of California will be an area where they don't use these warrants. And if that's the case, that indicates to me they're looking at that friction. And that's what, yeah, really interesting. Molly, let me come to you on, you know, the kind of broader policy implications that kind of come downstream from this. You know, we've seen this reliance on these things be brought to the fore. Maybe they'll get litigated. Maybe they'll get ultimately spring court if they take it that far to intervene and clarify the issue for or against them. The other tool kit that you have in here is actual, you know, congressional pushback. We now have a deal where DHS is open just for the next two weeks or funded. I should say for the next two weeks at which point they're going to have to have a longer budget conversation. Obviously, that was a vehicle that Democrats sign on to with the full intent to say we're going to use these two weeks to try to get some concessions legislatively. I kind of curious, you have a sense about what you think that potential for pushback is. And if where this fits in the kind of hierarchy of pushback, in some ways, this is like kind of an alarming thing that I think has a lot of people on the right who might be of a more conventional libertarian angle, a little bit more alarm. Like you see Rand Paul, a couple other folks on the right be pretty vocal about objections and concerns about this. But does that mean that this is maybe an easier give away to Republicans in the hill or do you not read it that way? I don't know. I mean, I think it's tough because I think on the one hand, yes, this might be the kind of thing that concerns people on the right. And I suppose that could then be an area for ground to be given. But I also imagine that people on the left, like yes, it's alarming. But also compared to a lot else that's going on, I feel like it would kind of fade into the background of priorities. I mean, it's the sort of thing that I don't hear my friends who are generally upset about what's going on in Minneapolis talk about, right? And I was also kind of thinking, you know, there was the news today that Tom Homan was going to withdraw, I think, 700 of the deployment there. And so that is a standing down in one of the big points that he was making or one of the big changes that his arrival there was supposed to be. And so the other thing that I think is that the bigger was a focus on targeted raids rather than these general sweeps. And these are targeted raids, right? And in some ways, people see that as a drawdown. So on the one hand, this is really alarming. And it actually is a huge break in how things have been done that could have big implications. On the other hand, I think if you're not as read in on what's going on, it doesn't necessarily look as upsetting and as scary as some of the other stuff that's been happening on the ground. And I think that's a big part of the fact that you just put me on the last topic because a big part of this is going to be like how important are these things otherwise, right? Anytime you get some sort of pushback on a practice, there's always a concern being if you go to and too far the other way Congress, you're going to be taking away a tool that we really need in other context. Is this a really valuable tool in other contexts? Like how tailored would folks in Congress need to be if they were to try and curtail reliance on these sorts of things? It's incredibly widely used. It's going to be difficult to overstate how frequent they get issued. They require nothing more really than a supervisor signature, which is not a particular high level of management. But I do want to push back real quickly just gently on something Molly said. We need to be very cautious about buying into the administration's guarantees that these are targeted operations because the alacrity with which these administrative warnets could be issued means fundamentally that they can turn them around in a matter of minutes and decide to make somebody they saw on the street a targeted operation in the course of a half hour. So let's not take home in guarantee that these are targeted to mean that they are planned far in advance or well thought out or only dealing with certain candidates for removal. A targeted operation can be done very quickly. And there's another consequence. The DHS OGC isn't thinking of that I'm just going to highlight very quickly, which is a lot of these operations and removals are taking place in a task force environment where ice and particularly ERO are not the only law enforcement agency. And if federal agencies that do not have this administrative subpoena power make entry with ice pursuant to them. And depending on how the memorandum of understanding is written, those other agencies employees could really be opening themselves up to substantial liability for being outside the scope of their employment. Interesting, really interesting. I mean that really so often with so many of these things comes down that accountability question and the availability of those tools which we haven't seen be widely available whether it's Bivin's whether it's a different types of liability, whether it's a quote of qualified immunity, but we're really seeing the central limit to those good test and let us go because we're running short on time to our third warrant in our stream of warrants here. And trying to come to you first on this story. The last few weeks we've been following I think kind of in the background seeing I think a couple of weeks now it's almost been a topic we've talked about. We haven't haven't risen to the four. It's gotten bumped by other three here on National Security. We thought it was time to talk about it about this Hannah Nathanson investigation Washington Post reporter who had her personal and professional electronics seized by the FBI as part of an investigation into defense department contractor leak which I believe they actually have brought charges against somebody now or at least what they think is associated or at least it's been reported in some circles has been associated. I believe the leak was something related to the Venezuela military operation earlier last month the fire call correctly. Regardless the key point here is this question about going in seizing reporters electronics apparently just retain them as of a couple hours ago she and her Twitter still had a message up that seemed to suggest she had not yet received materials and electronics back. You know you've been involved with investigations like this and talked about what the usual approach is for handling investigating a source of a reporter and where this falls on that sort of spectrum because I think it's this has a lot of people a little bit more alarmed about the approach they seem to be taking in the fact that it seems to suggest that maybe there's a view that Nathanson herself might have had engage in some sort of criminal activity which could be really chilling if that's the approach they end up taking to a lot of reporters particularly working on classified issues as this all gets back down to a leak in classified information sort of case. So talk to us about your experience around these and how this fits with it or doesn't. Yeah so just as a little bit of background for the case some of the framing too is there are two parts in my head right there's the case against a rally a Louise Perez-Lugones and then there's this search warrant against Nate and Son the reporter from Washington Post and while they're interrelated I think it's important when we kind of dive into both to make sure in our minds that there's somewhat separate and the reason I say that is because the case against Perez-Lugones at least in my experience looks like a legitimate 793 case. I mean the only thing I we I'm seeing from the outside in the public is the what's been filed right the indictment the search warrant affidavit or the complaint affidavit and then some of the materials from the parties. And 793 is the espionage act right? April yes espionage act. Exactly 793 E in particular which I think he's indicted with five or six counts of that and and there's a there's a just to take a once that back there's a spectrum of these kinds of classified information handling statutes there's 18 USC 1924 on the low end which is kind of mishandling classified information then there's this 18 USC 793 in the middle range and 793 E in particular when the information is known as what's called national defense information and you unlawfully retain it or unlawfully transmit it then you've kind of in this middle trunch which is a higher statutory maximum of 10 years and then even more extreme on that spectrum is the 18 USC 794 which is when you've taken that NDI and you've shared it in particular with for example a foreign nation state that you know may use it to harm national security interests of the United States and so I view it as this spectrum and where Perez-Lugones is charges in that middle spectrum of 793 E and he's accused of both allegedly transmitting it and it appears to to Nathanson and then also unlawfully retaining it particular documents and the classification of those documents will matter later if there's ever a sentencing and they range anywhere from top secret to at least one document that's confidential and so that appears to be the the criminal case in Perez-Lugones' situation and then there's this search warrant that seems to have been born from the criminal case against this Washington Post reporter Nathanson which has now spawned I think appropriately so a lot of questions about government norms whether there are laws that prevent this that have been violated or whether there are norms and policies that have been violated it strikes me that the meat of the conversation ought to take place in that second category of norms and policies mostly because as a prosecutor when I look at this it while you may be concerned about the existence of classified information on someone's phone as a responsible prosecutor you'd be thinking to yourself okay how do I handle the fact that this person's phone is a reporter maybe we should think through these things I will say in reading through some of the materials from the Washington Post using again 41g to claw back these materials and the government's response to it it's really thought out developed response they've presented a filter protocol which is normal they have proposed how a tank team or a team separate apart from the criminal investigators were review this with FBI agents who are separate apart from this all of that is a relatively normal proposal from the government and now that that's all not getting at the kind of broader concerns here of the person's reputation and profession as a reporter which I think it's hard for me to know how the prosecutors thought through that without seeing anything publicly filed on it but certainly they must have thought through what the consequences are here and unfortunately for the prosecutors involved if they're good actors interacting responsibly they're are not operating in a vacuum they're operating in an administration that has lost a lot of trust and credibility with the public and so a lot of folks are going to look at this and appropriately so ask the question of whether or not this is related to this reporter's actions reporting critically against the government yeah Molly you of course are Washington most alum and work are journalists and have worked with many journalists still probably I have no doubt in touch with many journalists like talked about that chilling effects sort of mentality like you know frankly to some extent I think journalists are a kind of a rough and tumble bunch that likes to push back on this and is not as easily deterred as some may be afraid of them being deterred in some regards part of that though is because they've had this kind of robust sense of both norms and constitutional rights backing up a lot of conventional journalistic behavior so how big a risk is that sort of chilling effect in these sorts of cases and and where the where the sense of the line is you know one part of this I think is interesting is this idea that we saw come out in the WikiLeaks context over the last couple years where well there's this line between we're Julian Assange could be subject to certain types of prosecution and criminal liability in part because he facilitated the accessing of this classified information passed on you know he helped provide the programs that you know Chelsea Manning used to remove files and transport it to him but that's something that you know some people that you've seen different views on like how far that is removed from a journalist role or not so do you have a sense about like how how fuzzy is this line where does it leave people yeah I mean fuzzier than ever what was it Mike said about Fulton County that was exhibit 2347 in the erosion of norms so this would be exhibit 2348 I think that journalists you know previously felt people were alarmed about Assange but it seemed like there was a distinction that could be drawn or you could say he is enacting in this capacity as a journalist exactly and certainly if your reporter a beat reporter at the Washington post you see yourself as distinct from Julian Assange and there you I would imagine a couple different ways of doing that there's I mean there's any plausible allegation accusation that you're a foreign agent right I mean you're you're you know you're working for the Washington Post and most pretty much everyone I knew for working for the Washington Post was pretty you know in it for the for America for the United States for the you know democratic norms and the free press and the constitution and all that good stuff right so so I think it felt very different I think that there is a real chilling effect when the line that you believe to be in place appears to be getting eroded and that line would be first of all the search and because it is highly unusual and even the subpoenaing of emails in the past provoked huge amount of controversy and as part of what led to guidelines at the Department of Justice and I'm sure that Mike can talk more about this but that made it made media leaks much harder and made it much less likely even that there'd be subpoenas of journalists materials and you know much less searches of their homes in the we hours and the season of all their electronic devices and basically their entire kind of professional universe of sources so I think that even the idea that that can happen that someone can come and take all your work right not even just something related is alarming in itself but then I think the kind of looming possibility that remains here of a prosecution is more alarming still and they said she wasn't a target of the investigation but when you look at the affidavit that accompanied the search warrant it includes examples of her talking to the source and saying things like it would be really good if you can do it safely if you could get us more of this information and they're suggesting there that she knew it was classified so I think the idea there is does that get more into possible conspiracy does it get into aiding and a betting and the closest analog we have to that the problem with finding case law on a lot of this is that they haven't gone after journalists but I think the closest analog would be what's known as the APAC case where to APAC lobbyists were taken to court for their involvement in getting classified information and in the case of the investigation and in that case ultimately the judge said you have to prove that they knew that it could cause harm to the United States that the lobbyist did when they did this and then the government administration change over in the government decided we don't want to meet that burden and we're just going to drop the case so we never really got an answer but there's the possibility that they could bring a case with a journalist for the same thing and then it would kind of be a question of is there a First Amendment defense and the case law there when it comes to not classified information but other privileged information suggests that you'd be weighing the interest against each other freedom of the press First Amendment versus whatever compelling interest the government might have and the courts including the Supreme Court have suggested that national security might be the most compelling interest of all so it doesn't look good if a case is brought and I'd be a lot more worried now if I were a journalist because before it seemed like you wouldn't even approach that point and we're at the very least approaching it at the moment Mike let me turn to you for a little bit of the investigators perspective on this as I know you've also worked in cases that you know are in this general space part of the concern here the part that I know the reporter has seen the most vocal about that's in the case of the fact that you've again seen this seizure of this whole range of materials that presumably contains not just this one sources material but also the whole range of people that Miss Nansen has engaged with as part of her journalistic role many of whom don't have any relation to this sort of operation that's not unique to this case that is to some extent a risk any time you're dealing with people who are involved investigation that have privileged information or otherwise protected information so talk to us about does it seem like if this is investigation that the investigation is pursuing this is the way they go about it and what does it mean about how those devices records materials should be being handled in the background to you know head you against the risk of inappropriately treading upon first amendment journalistic rights in a way that is unnecessary for this investigation if you were to accept this investigation as appropriate the broader sort of fallout potentially from that yeah so I think this is pretty uncommon because of any particular philosophical bent on the part of investigators or agencies but rather because pretty much since the Obama administration when Eric Holder was attorney general there were a series of memoranda and internal policies that really limited the ability of investigators to even open a media leak investigation let alone go after a journalist in the context of a search but I'm gonna I'm gonna make an argument I don't think I actually believe in but I think we in good conscience should at least articulate it for the audience and it's the argument in favor of chilling journalist speech in this context we say as a journalistic organization yes yes well you know hypocrisy is the tribute something something something but you know the reason we have an ecosystem of regulations about classified material and the reason we have an espionage act is that there is a broad consensus at least that there is certain information that if our adversaries got a hold of it could cause grave national security damage and there are different ways for an adversary to get that information obviously the one people think of is an insider threat a mole in the US government ab scons with it and gives it to them but if they read about the exact same information in a newspaper we're still this advantage in the same way as if they got it from a spy so there is at least a colorable argument that doesn't often get verbalized because it's frankly it's sort of offends a lot of cultural assumptions that people who tend to end up in the justice department or the journalism world have but there is an argument for going after journalists who publish classified information in terms of what the agents are going to be looking at search warrants are scoped the agents are should not be looking at things that do not pertain to the exact case that's actually my minimal concern here and just to throw a wrinkle in something Troy said earlier we should know the escalation act is not only about classified information it's about national defense information which is something different that phrase was created when the espionage act was promulgated before we had our contemporary classification system I'm only aware of one case in US history out of EDVA in the 90s where maybe early 2000s where there was a prosecution for unclassified information but let's just recognize that the statute is written less carefully than we would like that I think is fair the espionage act is a complicated device I think that's right and it's important to point out because I'll also kind of jump on to a odd point as Mike phrased maybe I don't believe in fully but just to flesh it out if you're the government or if you're a citizen of the government I think very biased you would want your government to think okay how do I handle this national defense information now that it is outside the bounds or holdings of the United States government particularly if I believe it's been properly classified so it doesn't reach the hands of foreign adversaries it's not calculus that the government ought to be operating in where I think that this administration has gone wrong where folks like Bondi have set their prosecutors up for failure is the way in which they execute on watering down policies and allow themselves vulnerable to attacks for intention that may not exist on the part of the trial attorneys looking at a case like Perez-Lugones in April 2025 comes out and completely resins Garland's media policies that did make it much more difficult to issue subpoenas and open investigations engage in search warrants or charges that is to me harming the line when they engage in what maybe a legitimate espionage act case and then when Bondi comes out and says you know the government and the department of war executed a search warrant today that is not normal and it again opens up the trial team to damaging critiques of whether the department of war is now calling the shots for DOJ and whether they're part of the prosecution team and so I hesitate it seems a little bit like Mike and I are now jumping on and saying Urah take down the journalists by no means do I mean to say that I just mean to say that there are points here the government ought to be thinking through a highly classified national defense information and I trust that Molly will bring voice to something I can as well but which is to say there are concerns on the other side which we should care about Yeah right I mean I was going to say let me argue for something that I do believe in which is basically that you're weighing interest here right so you're talking about national security and our adversaries getting access to this information on the other side you're weighing accountability and I'm glad that the Washington Post was able to publish a story about the second strike on that boat in Venezuela right and so we have the espionage act that was previously and still because there's been no prosecution against Hannah Nathanson deployed against the leakers and to me that seems like a totally fine balance it's not like we're not doing anything right so you're trying to deter the people who might leak this information do you need also to go after the journalists who occupy this position where they're supposed to be communicating information and to the public and using their using their discretion and using their best wisdom and we've seen plenty of cases where the press hasn't moved forward with the story the New York Times it was reported didn't move forward with the story about the Venezuelan mission so I think that I think the balance was fine as well as I don't think the balance was on the side of we're throwing up our hands about the leaking of classified information maybe investigators were being a little too hands off on media leak cases maybe they'd gone a little too far in that direction but to go so far in the other direction that prosecutions of journalists are being contemplated seems to me like way over compensating for whatever problems may have been there yeah that that last point is compelling to me I do think that the the pendulum over slaying is a real concern here particularly because they're not operating in a vacuum again they're dealing with administration has called into question their motives all right I'm going to disagree with Molly here on this one intelligence comes from sources the majority of it comes from human sources even signals intelligence is usually enabled by a human source in a foreign country where if the compromise is discovered it can be traced back to them the fact is journalists are manifestly the fact is journalists are manifestly unable to weigh the potential damage to a human life that is helping the United States simply because they are not read into anything that is not leaked to them so they're operating in a contextless environment and I understand there is a compelling interest in journalists bringing wrongdoing and corruption to light I'm just saying there's a competing equity that they often times do not always think of that could result in people helping our country lose their lives and there are times that they have held off on stories where that could happen but there's also times where organizations like the New York Times have decided that it's up to them whether to publish a case officers true name who was involved in certain CT programs and you know the government's not always going to be right the press is not always going to be right but the working assumption we've always had that sunlight should be shown on almost everything is really leaving a lot of equities out of the equation that's a fair point well we have more on this debate in time to come because debate has been with us for a long time it's not going to go away today because I have some views too which I don't necessarily agree with any of you but that's fine I'll save mine for another day because for the time being we are out of time for this episode of rational security but this would not be rash security if we did not leave you with some object lessons to ponder over in the week to come until we were back in your pod catcher Molly what did you bring for us this week I was going to ask whether it would be bad to recommend season two of the night manager which would be three weeks in a row I'm not going to do it although we recommend it I would only it's great if people are into it I would only it's great if people are into it I could just recommend that I was trying to stick to bringing an object this is a little depressing but I brought a clip of the first editorial I ever wrote for the Washington Post which was on Metro's ongoing hazards and was about some smoke leak in Metro and how they could try to avert future smoke leaks but so the news today was that there's been mass layoffs at the Washington Post and it's kind of part of the story of the Washington Post's decline and in my opinion of Jeff Bezos' capitulation to the Trump administration and so one thing they did was Vassily Restructure Metro they also cut a bunch of foreign staff they completely eliminated sports and books and the editorial board is writing editorials like in praise of the Department of War now they're certainly not writing about Metro's ongoing hazards and I brought it partly to the point I brought it partly kind of as a reminder of what the post used to be not only this really robust national outlet but also my hometown paper a local paper and you know it's a lot of what made the post special to me and that I'm sort of in mourning for at the moment yeah it is a really sad day I think for anybody who's spent all the time I am a DC local so I grew up reading the post and have subscribed I think my entire adult life which may be coming to an end at some point soon sadly but it's a great institution with amazing reporters I particularly was devastated that they've identified their entire crew of Middle East reporters who really did some of the best and least reporting of the last few years it's really devastating and it's a real bummer to real national loss and you know I still hope maybe somewhere out there Jeff Bezos or someone else will come to their senses and understand that something worth preserving but I'm not holding my breath for it at this point Mike on that somber depressing note what do you have for us hopefully something equally summer and depressing or pick us up a little bit my object lesson is a cause for joy in the Fimered household and it is the just released 10LP vinyl box set of Miles Davis's multi-night stand at the plugged nickel a jazz club in Chicago recorded in 1965 I have literally been waiting close to three decades for this to come out because it was originally released on CD and as a young associate at a law firm I loaned it to a co-worker who lost two of the discs and it went out of print so I have not been able to listen to one of the night sets in close to 30 years so I have been doing nothing but spinning this vinyl much to the concertation of my wife and infant child for the past week and I can unhesitatingly recommend it to any jazz fan out there among our listeners wonderful wonderful suggestion I have had this box set floating image-or-ish occasional jazz which maybe you have inspired me to take the plunge into buying it I do not know we will have to wait and see once I get my turn table up and running again after a few months out of commission I will bring something on the lighter side I will say a friend and former colleague of mine who decided to take their leave of the department state has taken their usually very somber sober analysis and mind in a very different direction they started a sub-stack that I think it is fair to say embraces some of the absurdity of a particular moment particularly if you are somebody who has been taking about 20 years ago this is a sub-stack that is a satire sub-stack surprisingly sharp and well done satire sub-stack I have been watching Aaron do that Aaron to bounce to runs the website it is not a secret I was checking just to make sure I can reveal his name Aaron was a phenomenal analyst at the state department we were in turns together at the state department 20 odd years ago did some backpacking around different corners when we released together and we were in a state of a very somber so variety and this is anything but equally trenchant and cutting and insightful satire of the state department and broader US government that he is now spending his time on I really recommend folks check it out there is a lot of entertaining stuff and there particularly if you are in next state or foreign policy or an after-dee person but I think anybody will appreciate some of the articles Aaron is putting together here as he enjoys some time off it spells easier than it says but check it out and we will have a link in the show notes there Troy bring us home as our first guest you get the last object lesson what do you have to share with us Robotl address I love that's why I was great being part of the government for so long last word so I have a serious note though I'll try and end it with some humor there is a symbol that I would like to start floating around the team of the ecosystem of former government folks and I think this ecosystem of folks will be frankly our saving grace a huge part of refixing this government and building it in the years to come and there is a hat that I have though I should have brought it into the room but I'll show a picture of it is a hat that is a play on the phrase FedEx which is reversed that says X-Fed and it is the symbol of the government and exile a number of former prosecutors from DOJ are now buying it and going to wear it around as a symbol of their pride for what they took in the oath that they continue to serve even though they're not in the government anymore so I would encourage our listeners to if you see an X-Fed hat around give them a nod give them your own hat tilt whatever you do and I guess that sounds very western but the part of the government and exile and welcome to the team I feel like 10 or 20 years ago this would have been right material for a challenge coin when those were all the rage I feel like they have really declined I was really in government during the heyday of the challenge I'm pretty like duty intelligent circles but you know it's a logo with lots of potential applications well wonderful that's a great suggestion something I enough of other folks in my household who are also X-Fed's until then 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 lawfermedia.org for our show page for links to past episodes for our written work and the written work for the law fair contributors and for information law fairs other phenomenal podcast series while you're at be sure to follow law fair on 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 free version of this podcast www.cfed.org our audio engineer producer this week was me and our music was always performed by Sophia Yann and we are once again edited by the wonderful Jen Patcha on behalf of my guest Troy, Molly, and Mike I am Scott, our Anders and we will talk to you next week until then goodbye seconds that's the difference between life and death I've seen it first hand I'm Javad Abdomanem a doctor with midsense on fontier as conflicts continue to spread across the world it's crucial we can act fast as an MSF doctor I may need to stop live threatening bleeding treat gunshot wounds or care for blast victims all in a matter of seconds that's why at midsense on fontier we don't waste any time we're working in more conflict zones and you may be aware of giving 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