Lawfare Daily: President-elect Trump's National Security Appointments

[Intro]

Mary McCord: You know, these two positions, I think were exactly what you just said. His way of saying, I am capturing these with the, with the people I think who are going to be the most loyal to me, the most willing to make sure that I don't have to worry about these two, you know, the Department of Justice and the intelligence community sort of messing with what I wanna achieve in this administration.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittis, editor-in-chief of Lawfare with Lawfare Senior Editors, Scott R. Anderson, Alan Rozenshtein, and Quinta Jurecic. And Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection.

Quinta Jurecic: There is not a strategy there is not a, you know, brilliant plan here it is putting people in charge who are in some way aligned with his worldview and who are in a position to do a great deal of harm.

Benjamin Wittes: In a live recording on November 15th, we discussed President-elect Donald Trump's picks for his cabinet and his senior level administration positions, including Matt Gates as Attorney General, Pete Hegseth as Secretary of Defense, Tulsi Gabbard as the Director of National Intelligence. We talked about the potential use of recess appointments and so much more.

[Main Podcast]

Alright, we have the outlines of a Cabinet. We have no idea at this point whether any of them are gonna be subject to Senate confirmation. And we have a bunch of let's just say eccentric appointments. Scott, get us started. Give us an overview of what has happened in the Cabinet appointment department over the last week. Well, that, that's a lot for those who have been living under a rock.

Scott R. Anderson: So we basically, over the course of the beginning of the second week, I guess, of the incoming president-elect period for former President Trump, we have seen a complete blizzard of nominations coming forward.

And, and I think it's worth bearing in mind that this gets to kind of some certain overarching themes or impressions. I think it's worth taking away from this. This is unusual. Usually president elects take a little bit of time to figure out who they wanna fill their cabinet positions and do some due diligence on them, whether it's background checks, whether it's running by people.

Yeah. You have, you know, administrations that you know, you have, you have transition teams that have been thinking about this stuff for a while, but there's, there's really not any rush because. None of these people are gonna get confirmed usually for a couple more weeks, and you take your time to do it.

Instead, we're seeing this really, really rapid series of people thrown out of all sorts of ranks, all sorts of positions in a way that strikes me as, as a little unusual. I think it's worthwhile thinking of them in kind of like three buckets. On the one hand, we have some people who are people you might expect to see in a lot of Republican administrations that are at least being talked about.

Not all of them have officially been announced yet. So you do have Marco Rubio who is, you know, nominated for Secretary of State. I think Marco Rubio is somebody you could see in a cabinet in a lot of different Republican administrations. Not unusual guy, a guy who backed Trump, but former critic of Trump.

But somebody who's been a major Republican actor in a lot of circles, in a lot of, for a long time in different regards. In some ways, he kind of stands alone in that particular category, at least among cabinet people. But you also see a few other folks who might not be wild surprises. Coming out in different sort of roles or capacities.

Elise Nik is another one where she's a prominent member of Congress. UN ambassador is a little bit odd, but maybe not a while sort of appointment. We've seen that position go to a variety of people over the years. Then we have a bucket of people that are clearly Trump, people that are being, you know, kind of.

Leveled up by virtue of their association with Trump and being put in these roles where maybe they are aren't necessarily unqualified but they're people for whom are a little bit of a surprise. And clearly their relationship with Trump is giving them a big edge. I would put in this category.

Although Mary and Alan as DOJ Williams may disagree with me, some of the kind of second tier people we're seeing at DOJ who are Trump's criminal defense attorneys, or for Solicitor General, they're all experienced lawyers. They're all attorneys. Many of them have experienced with the Justice Department.

They have a relationship with Trump, which is a little suspect and complicated 'cause they were his defense attorneys. But they're people you wouldn't say are foundationally compromised or foundationally, entirely unqualified. They're people who are getting a big plus up 'cause their association with Trump.

You know, I think a lot of people, whether it's white House, chief of Staff, Susan Wiles who comes in, who's, you know, a kind of political figure in Florida and in the campaign, very influential by all accounts with Trump himself personally based, based on the personal relationship, but not somebody you would usually see jumping in as the chief of staff of the White House.

'cause she has no experience really with federal government. But nonetheless stepped into that role. You know, you see a lot of other folks who, who are stepping in, who again are, are, have some degree of qualifications but are kind of odd choices, but it makes sense. They're not entirely unqualified

Benjamin Wittes: and bracket the lower level justice department officials who are Trump lawyers for a moment because it raises some very unusual conflict of interest questions.

Scott R. Anderson: There are clear conflict of interest issues, and I am bracketing that out for this particular question. I mean, but it setting those aside and they could resolve them by recusing themselves from those cases. Right. I, I think, think that would be unusual. Obviously, private sector attorneys come in to DOJ all the time with every administration change.

They have, they have conflicts of interest to some extent. 'cause they usually represent different private parties before the Justice Department or matters involving the Justice Department and they recuse themselves. That's what they should do. We'll see if it happens. That's a bigger question. That's more of a substantive question than a qualifications question.

Then you have a third bucket of the complete wild cards and this has become an increasingly dominant bucket of the three, I think in the last few weeks or last few days I should say. We have Matt Gates being talked about as Attorney General. A troll move if ever there was one, including to the Republican caucus in the House and the Senate with whom he is wildly unpopular.

See Pete Hege, Seth a kind of unknown, at least in a lot of circles. Fox News host with very controversial views about the military. Very controversial tattoos that got him in trouble when he was in the military and now is being put forward in a role to an extent that with such little preparation that members of the Senate who are expected to confirm him, who are Republicans in the Senate, don't know who he is.

And were surprised 'cause he was not. On the list of people they were given that were being considered by the transition team. There's a whole list of these people. Tulsi Gabbard for the Director of National Intelligence, John Ratcliffe, our CIA director, who really came in as kind of a second wave in the last few days that are the ones that are gonna suck a lot of the air out of the room and are gonna be the biggest kind of test for the Trump administration in the Senate and or through whatever process they try and get these people confirmed with because they raise their real fundamental question as to whether they're even qualified or the type of people we would.

Feel comfortable and responsible having in these roles. And those are questions that are now gonna be put to Senate Republicans, presumably, again, unless there's some sort of end run around the confirmation process that they're gonna have to answer. There, there's obviously a long list of people who can run down.

I would propose, you know, we, we kind of break it off by agency or issue set as opposed to giving a big running list of it now. But that's how I'm thinking of it, is in those three buckets. And I'll say early on we saw the first bucket kind of dominate and I was feeling on rational security a few days ago, a little more comfortable where things are.

And that third bucket has really been the predominant last wave of these appointments we've seen in the last day or two. And obviously I think it's a lot more people alarmed.

Alan Rozenshtein: I will say, Scott, I was listening to the rational security episode having known about this bucket, and I thought, man, I, Scott is gonna change his tune.

Scott R. Anderson: We were like two hours too early. We literally recorded two hours before they all got dropped. I regret that now in hindsight.

Benjamin Wittes: Alright, so let, let's deal first off. With the relative normie bucket, and I wanna focus for this purpose on Marco Rubio could also throw Christie Nome, who is, you know, certainly governor has been a traditional qualification to be DHS head.

See Janet Napolitano, obviously a much more distinguished governor than than Christie Nome, but formally similar position. And as well as, I forget the first DHS secretary had been governor of Pennsylvania. If memory serves Tom Rich. Tom Rich, right. Mary and after Mary, anybody else who has thoughts is I, I don't think these people are likely to have Senate confirmation problems and they seem like reasonably within the zone of what people might have what sort of normy Republican voters might have expected when they voted for Donald Trump.

What do you make of the, of, of the, and by the way, I would put the named national Security Advisor in that category as well. Mary, do you think I'm being overly generous there?

Mary McCord: So I, I think particularly with respect to Senator Rubio, that is something that wouldn't be alarming to people. Certainly qualified for the position has served on, you know, relevant committees throughout his career.

We can easily and readily find the things that he has said about foreign policy and national security and things that are relevant to his role as the Secretary of State. And so I would put that as really maybe one of the most normal announcements of all. I, I do think people like Christie Noam are in a little bit of a different category.

I take your point, and I, and I think we could say this about various of the others who we haven't gotten to yet, that yes, in the past there have been people who've been nominated for similar positions who come from governorships, and at least you've been in a position to be, you know, leading a government, even though it is South Dakota, not the biggest state or the biggest government, but still you've had some position, you know, managing.

All of the things that you have to manage when you're leading a government, and that includes public safety and law enforcement and the National Guard and lots of other, you know, more classically sort of intrastate issues. But, you know, some of her, some of her rhetoric some of her sort of statements and, and extremism do make.

Her feel like she's a different person than just

Benjamin Wittes: Janet Napolitano never killed a dog.

Mary McCord: Exactly. Right. Right. So, so that's where that one makes me more worried that she's not really a serious person when it comes to a really difficult job. I mean, the Department of Homeland Security, I think, since it was first founded, has just been such a challenge for every person who's ever been tasked with leading that department.

In a way its mission just makes it difficult because you're a, a, you know, on the one hand supposed to be protecting the homeland, but on the other hand, you know, you're responsible for doing things like deportations and that, you know, also feel like there are people within the country who won't feel very protected by that.

Right. So it's just got a, a very mixed mission. So I, I, I think that's a lot less normal. But I a hundred percent agree with Scott that sort of, that first wave, I was like, okay, well this maybe isn't too bad. And then Wednesday hit and it's just been like you know what's gonna happen next? In fact, I, I like you, Scott, I had given an interview on Wednesday before the Matt Gates announcement, like three interviews, and after that I, I recontacted each reporter and said, we need to amend a few things here about what I just said because the whole world has changed.

Benjamin Wittes: This is why we don't do things live when we don't have to. Quinta.

Quinta Jurecic: I wanna add a little bit to Mary's point about Christy Nome, who I agree on paper, if you say Governor of South Dakota, you know Sure fine. At least this is someone with some executive experience. The point that I think is important to make is that DHS we saw under the first Trump administration, and I think there's good reason to believe that this would be even more dramatic in the coming administration, was really in many ways, sort of the pointy end of the spear in Trump's efforts to implement a lot of his policies shading from those that were, you know, legal, but outlandishly cruel to those that were.

Really stretching the boundaries of executive authority including of course collecting the social media posts of one Benjamin Wittis. And I do think that I do think that because of that, it is notable to me that, you know, as with all of these other appointments, Trump has selected someone to run DHS, who has really built the recent part of her political career around her willingness to bend the knee to him in sort of increasingly bizarre and extravagant ways.

And that does not give me any of the confidence that I would ideally want to have. That Noam is someone who can run DHS in a principled, an independent way.

Benjamin Wittes: Yeah, so just to be clear, when I said relative normy the word relative was doing a fair bit of work there and honestly covers a lot of ground from Rubio to Christi Nom, who are not similarly situated.

Scott, before we move on to the less normy buckets, do you have thoughts on this one?

Scott R. Anderson: I do. You know, the one thing I would say that I think is really interesting is both a first couple of appointments and the ones that are in this more normy bucket that's slightly more comforting. First wave are foreign policy appointments, right?

It's Mike Waltz. It's Spark Rubio, and, and they're unusual, or not entirely unusual. They're like appointments of people who don't buy all of the Trump foreign policy agenda, hook, line, and sinker. That's, that's. Not co super complicated 'cause it's, the agenda is a little ambiguous on a lot of details, right?

But you clearly have Rubio who is somebody who's got a much more conventional conservative foreign policy view than a lot of people in Trump's Camp Waltz. Like flirts with a little more of the isolationist restraint camp, but is much less so like very big China Hawk, right? And so the fact that, and you have Stef who you know, is I think is a little bit of a you can read whatever you want and her, her sort of record on this stuff, but is kind of at least conventionally considered like relatively bright and and competent at the kind of conventional political tasks, which is kind of what you and ambassador are a big part of what you're doing.

Like these sorts of people I think are assigned that they were a pre-baked kind of into the formula. Like I don't think you arrive at Rubio at the top of. Trump's list because he's being rumored. And also I Rubio, at least as far as I concerned, we haven't gotten confirmation. He's the appointee yet.

He's been rumored and reported that he's the likely choice. I don't think we've actually gotten the truth social tweet on Rubio yet to confirm that, or a press release from the transition team. I could be wrong though. Maybe I'm outta date on that. And it's a sign to me that maybe there was a, whatever process was in place to try and build consensus around nominees did these first, because these are big fractures and divides within the Republican caucus and with among Trump supporters, and came up with candidates that were kind of pre-cleared and baked to kind of make people happy in different sort of camps.

That's kind of what you usually expect with these sorts of appointments and with these sorts of processes. So in my mind, it suggests that there was some sort of process in place to do this. Then that seems to have run around or somehow gone off the rails. Which I think is just an interesting, the fact that you would see the first wave of this beat kind of immigration and then net foreign policy, national security is just really telling about where the, the, the conventional focus was.

And again, again, it's just such a different tenor than these later appointments. I think it's worth, worth kinda zooming in on that.

Benjamin Wittes: Alright, so Alan, and then there was Pete Hegseth. So I was trying to think the other day whether we have ever had a defense department nominee with lesser qualification than him.

And I could not think of one though, you know. John Tyler administration's nominee for Secretary of War does not, did not readily come to mind. So I don't wanna make a bold statement about this, but it seems to me this is an individual who has served at, at, you know, well below flag level. He's not, this is not a senior officer, but did serve apparently with some distinction and is also known.

His principal qualifications in this area seem to be that he is a sycophantic Fox News host who likes war criminals. So what do we make of this?

Alan Rozenshtein: Well, I think we make of this is that a sycophantic Fox News host who likes war criminals is gonna run the Department of Defense. I, I mean, I, I will admit, I, I am, my expertise is more on the justice side than on the defense side.

And so I suspect, Ben, you have a better sense of this than I do. But, you know, the Defense Department is not, I mean, I'm gonna say much of platitudes, but we're at the level of platitudes. The Defense Department is not a small, uncomplicated operation to run. The United States does not find itself in a period of particular international peace and tranquility.

You need to have competent people running the military. You need to have competent people that can also tell the president. Not what he wants to hear, but the actual truth. And as far as we can tell Pete Eth has none of those things. In addition, he carries with him a bunch of personal baggage.

You know, there's news reporting coming out about, you know, concerns over sexual assault allegations from, you know, not that many years ago. He has a bunch of tattoos which is fine that the tattoos are not the problem, but it's unclear what they stand for. And some of them may be sort of white nationalist adjacent tattoos.

I mean, this is just not someone that you would ordinarily think would be appropriate for this kind of role. And it just shows the profound unseriousness with which Trump is approaching what may very well be life or death determinations. This is the Secretary of Defense we're talking about, you know, not municipal dog catcher.

And so it just does not fill me with any confidence whatsoever. And we haven't even gotten to Matt Gates yet.

Benjamin Wittes: Oh yeah. We're, we're actually still three nominees away from Gates, because then there was John Ratcliffe.

Quinta Jurecic: Actually, can, can we dwell for a little bit, Ben, if it would be okay on, when we talk about Hegseth and his affinity for war criminals, I think it's important to like, actually dig in on what we mean by that.

We're not being cute there.

Benjamin Wittes: No, no, no, no, no. That was not a joke. It wasn't, no, I know. In

Quinta Jurecic: fact, I, I think it might be useful for listeners to have more context. Please do. So essentially, so what we're referring to here, there is a number of instances of members of the military who were subject to discipline for work crimes.

I think the most notable example is probably that of Eddie, Eddie Gallagher who is a Navy Seal who was. Prosecuted a military court for shooting civilians intentionally in Iraq using a knife to murder a teenager who was a prisoner, a member of isis, and also threatening to kill his fellow seals if they.

Reported him. There's reporting in the New York Times about how, you know, fellow members of his, his unit described him as psycho toxic, a killer, not someone they wanted to serve with. And this is the person who Hegseth decided to go to bat for in order to reverse Gallagher's demotion and grant him, you know, sort of give him some, some grace using his presidential authority.

This is consistent. I would argue with how Trump campaigned in 2016 when he argued that the military should be killing the families of members of isis. You know, really explicitly running on a platform of doing war crimes and I think speaks to a really distorted and disturbing view of what the military does and what the military is for.

So, needless to say, I think intervening like that is disturbing enough on a one-off basis. Or encouraging the president to intervene like that. Having someone like that lead the Department of Defense is a different matter altogether.

Benjamin Wittes: Alright, let us go then you and I to John Ratcliffe. Now this one seems to me to be a little bit of a complicated one.

Ratcliffe has sort, sort of in the Christie Nome category, Ratcliffe has served as DNI. He was a US attorney member of Congress involved in some relevant committees. He is not facially unqualified to be the CIA director. He is a kind of maga hard liner in a lot of areas. Mary, should we regard this appointment as in the.

Sort of like Christie Nome like, or should we regard it as something better than that? This is somebody who actually has some, you know, some. Reasonable history. He's definitely tied himself to Trump, but he is a little bit more Rubio like than how do, how do you understand the Ratcliffe nomination?

Mary McCord: Well, I think it's a dangerous and concerning appointment in our intelligence community and particularly with respect to our, you know, relationships, this plus some of the others that we're gonna talk about, including Tulsi Gabbard in particular, and how that's gonna impact our relationships with our allies.

You know, recall John Ratcliffe came out, you know, very, very harshly and harshly is probably way too mild of a term against the whistleblower involved in breaking the story about the zelensky call that led to the first impeachment at this point. That seems like ancient history, right? But we can't forget about the significance of that.

And I think many of us who'd had spent time and everybody probably on this. Webinar who've spent time either in, you know, working in positions of national security or studying it, thought that this was a pretty serious reporting from the whistleblower and that it needed to be taken seriously. And, you know, Michael Atkinson, the inspector general for the intelligence community, when he got pushback from, from close Trump allies about elevating this, he who, you know, comes from a career at the Department of Justice.

I worked with him at both the US Attorney's Office in DC and at Maine Justice in, in the National Security Division. You know, he, he made sure to get, to elevate this because of its significance. And I think the things, what ju what Radcliffe did there. To try to bury and to try to disparage and discredit that reporting is dangerous because it is signi, it was significant reporting about a serious national security issue.

And now you're talking about him being the head of the CIA. So that, that leads me to, to question, you know, what is gonna be the message to the agents in that kind kind of like Quinta's point about the incoming or presumed incoming Secretary of Defense. Like what does that, what message does that send to the troops?

What message does this say send to CIA agents who've spent their careers there who've, you know, been under different leaders over Republican and democratic administrations. But I think all generally, you know, rowing in the same direction and understanding, you know, what's a threat to national security?

So I'm, I'm worried about the impact on the agency and then how that impacts our relationships with our allies.

Benjamin Wittes: And then there was Tulsi Gabbard who. Until the other day was thought of as a crank Trumpist, former crank Democrat, who was so far askew of conventional foreign policy views that she had gone to hang out with Bashar Asad during the Syrian Civil War and was a sort of advocate of, of an opponent of Ukraine to the point of sort of constantly promoting Russian propaganda.

This was the first nomination that truly rocked me back on my heels. And I, I, Mary, I, I wanna group it with the next one, which was the, the ultimate bombshell, which was Matt Gaetz because they came as a pair in rapid succession, and they seemed to be kind of similar fuck use to the agencies that they were nominated to head, both of which are matters that you dealt with as at NSD agencies that you dealt with on a regular basis.

So first of all, what are you hearing from inside the the dnis world and what are you hearing from within the Justice Department about, from people who are currently there about these nominations?

Mary McCord: So I have not, you know, reached out to have direct conversations. I do hear some things I've had, I've certainly had people reaching out who are in, you know, thinking they're gonna be needing to leave their positions.

And I think that's very concerning. Me

Benjamin Wittes: too.

Mary McCord: Yeah, I mean, probably every, you know, many people are hearing that and, you know, that's a personal decision that everyone has to make. There's the, the side that says stay and, and be a, be a guardrail. And then at some point people get to a point sometimes where they just can no longer feel like they can be part of something.

So everyone's gonna have to make that decision for themselves. But I to, I think to your sort of intro to this discussion, Ben you know, these two. Agencies, departments justice and the intelligence community writ large, I think are, were two of the biggest thorns in the former president's sides. Like, he, I think, felt most betrayed by his intelligence community and by the Department of Justice, the Russian investigation that he still considers a hoax, you know, the first impeachment things that his intelligence community took seriously that that he did not.

I mean, famously, I will never forget in Helsinki where he chose Putin over his own intelligence community. And so. These two positions, I think were exactly what you just said. His way of saying, I am capturing these with the, with the people I think who are going to be the most loyal to me, the most willing to make sure that I don't have to worry about these two, you know, the Department of Justice and the intelligence community sort of messing with what I wanna achieve in this administration and, and potentially worse being used for, for retribution.

And that all of that is made even more. Dangerous because of, and I don't wanna digress too far, but because of the Supreme Court's immunity decision, which gives the president, you know, complete absolute authority over his executive branch agencies, the Department of Justice, and there's no reason that shouldn't extend to the intelligence community and the IRS and all other executive branch agencies.

And by having that absolute immunity for official acts and, and ex and also expansively defining core presidential powers where there's absolute immunity, no balancing, no weighing whatsoever, that really gives him a lot of free reign to misuse the authorities that both the Department of Justice and the intelligence community have, which in my career at DOJ, you know, we worked really hard to make sure that.

If those authorities were properly understood, were circumscribed, that there were, that were, there were mechanisms for ensuring that they weren't abused or misused, all of those things. I, I, I fear at least for the political appointees and the pressure that they will put on the career, people will be kind of out the window or could be.

Benjamin Wittes: Alright. That is a great summary of the gestalt of these two nominations. Now let's talk about the individual nomination nominees in relation to the individual departments. Alan, you were a Justice department official at the line level. Back earlier in your career at a time that Mary was a very senior official in NSD where you served.

I want to hear first from Alan, then from Mary. You are back in your old position and Matt Gates is named Attorney General and confirmed by the Senate or installed by recess appointment. What do you do?

Alan Rozenshtein: Yeah, so, and you know, this is, this is not hypothetical because I have friends in this position. I have former students in this position, and I'm talking to them and I'm, I'm trying to give them advice.

You know, I will say that for line attorneys, who the Attorney General is, does not generally make a. Profound day-to-day difference in the work. Now, a lot of that, again, depends on what kind of work you're doing. When I was in the Department of Justice, I was a national security policy lawyer for most of that.

And there, what leadership decided did matter a bit more for what I did. But I also spent some time as a federal prosecutor in Maryland doing your average, you know, gun and drug cases. And it did not matter who the the attorney general was. So in that sense, you know, it, it will not for, for many line attorneys, it will not kinda matter in that day-to-day sense.

But the Department of Justice, I think like all federal agencies, but I wanna say, I think especially the Department of Justice runs on a set of values and culture and sprit de corps that relies enormously on the seriousness of the people in charge. Both them actually being serious people of integrity and wisdom and pardon language, giving a shit.

Also of them projecting that throughout the organization, and I can imagine few more demoralizing things than to have a clown like Matt Gaetz and let's just be very honest about who this person is running the Department of Justice. I mean, to have Matt Gatz sit in the position once held by Robert Jackson.

It is, it is a level of inconceivable that I really, I, I don't think can be overstated. Right. A again, when I was at DOJI was a attorney. Mary was my boss's bosses. Boss's boss. I'm trying to do the math in my head. And much closer to leader. She was in leadership herself and therefore obviously much closer to the sort of upper echelon.

So I'm very curious for, for Mary's view on sort of what it actually means for criminal justice, but I, I really cannot emphasize enough just the, the humiliation, the demoralization, the coarsening and, and the long-term damage that this, that this does. I mean to, to again quote, you know, former Attorney General and former Justice Robert Jackson.

I mean, there are a few individuals more powerful than federal prosecutors because of their unchecked discretion. And the reason that generally in American history, we have avoided, not fully certainly, but generally avoided the, the politicization and the abuse of the Department of Justice is because Department of Justice lawyers deeply internalize that sense of seriousness, that sense that when you stand up and you say, I represent the United States, and you have that awesome power and that awesome responsibility, it ma you know, that really matters and.

Again, to have someone like Matt Gates whose problem is not his substantive policy positions of the Department of Justice, I'm not sure he even has any, I mean, he was a lawyer for 20 minutes as far as I can tell before becoming a politician. Right? Just to have that person, that lack of seriousness is, is horribly corrosive and really, truly makes me just very sad for an institution that whatever its flaws and obviously it has some, i, i I truly loved and respected and it is, I mean, I, I don't mean to get too sentimental, but my reaction, it really is quite emotional and, and, and I think that's actually indicative of what the reaction will be throughout the Justice Department, and I think that's a problem

Benjamin Wittes: Mary.

Mary McCord: I mean, I associate myself with everything that, that Alan said. I do think and I remember when during the first Trump administration talking to line assistance in counterterrorism or in US attorney's office and saying, I think you'll be okay. Some areas even at the line level are not okay. Civil rights, for example, right?

I mean, that changes. I mean, that's always been a political football, but boy, you know, that's really going to change dramatically. Even in like, federal programs and civil appellate defending some of the most egregious policy decisions. I mean, you know, people were leaving in droves even at that line level based on the travel ban and having to defend that.

And you may recall in the first Trump administration, you could kind of get a good clue about how the career DOJ attorneys felt about a matter by looking to see who signed the briefs, right? If the briefs only had political appointees names on them, you knew that the career people had refused to sign onto those briefs.

And so I think we'll see that, but maybe even bigger for me in the position I was in. Now, uniquely, I was a career Department of Justice official, but I was serving in an acting capacity as the Assistant Attorney General. So normally the person in that position would've been gone on January 20th, but I wasn't because I was acting and I was career and not political.

And so for me. I thought it was really important to stay because national security is really important and you know, there's a period of transition where you're waiting for the new political appointees come in and things have to continue. And, you know, we were still, we were still under the pretty significant threat of ISIS that still had a.

You know, had physical territory. We were still trying to eliminate or mitigate that threat. We still had a lot of terrorist cases that we were bringing. There were airline threats. There were, you know, so many serious things going on. But it became more and more difficult every day because, unlike Alan, I had to talk to Jeff Sessions every day of the, of the week.

And

Alan Rozenshtein: my sincere condolences,

Mary McCord: yes. And so more and more I would be in this position of pushing back on the things that he wanted to do and use national security to justify those things. When, in my view, again, and I've, I'd worked under Republicans and Democrats my whole career nearly 25 years without any problem, but things that I thought national security, statistics, terrorism statistics didn't support including a travel ban from the, from the countries that were on that travel ban.

So for me. There just came a point. I had originally intended to stay until a successor was, was nominated and confirmed, but there came a point sooner than I had originally intended where I didn't think I could just keep sort of doing that battle every day and that my, I could be more useful someplace else.

And I have certainly learned that outside of government where I'd almost never been my whole career. You can be more nimble and there's a lot of good public service that you can do from outside the government.

Benjamin Wittes: I will just say that the fight that Mary fought on those terrorism statistics, unbeknownst to me those statistics showed up in President Trump's first speech to a joint session of Congress where their falsity caught my eye and ended up being one of our substantial litigations with protect democracy to try to uncover the falsity of that statement.

And the Justice Department eventually settled the, the suit on the basis that there were no records that supported the president's statement IE along the lines that Mary had just described. Alright. Let's talk Tulsi Quinta and then Scott, your thoughts on the Gabbard era in the intelligence community.

Alan Rozenshtein: Extra points for, as for the Aloha jokes, you can work into this if at all possible,

Benjamin Wittes: and any American Samoa without being inappropriate, you know, she is gonna be the first DNI who was born in American Samoa.

Quinta Jurecic: Yeah, my condolences to the people of American Samoa who deserve better in the way of representation and statehood, but that's a different matter.

I think that the Gabbard appointment is consistent with what we've seen as part of a long running trend under Trump, under the first Trump administration as well toward developing conspiracies about the intelligence community and then putting Conspiracists in charge of that same intelligence community.

Ratcliffe, though he seems pretty normal now, was someone whose main usefulness to Trump in his role as the DNI was his willingness to release material that he could somehow spin to feed various baseless conspiracy theories that Trump had seized on to claim that his supposed enemies were persecuting him in one way or another.

This led to a pretty astonishing amount of litigation. As, you know, litigants would point to things that Ratcliffe or Trump had said that the intelligence community had uncovered, and the Justice Department would then have to say, you know, actually just the fact that, you know, the president said this doesn't mean that we have information about it.

And so on and so forth. But Radcliffe, at least again compared to Gabbard, I think seems pretty normal. Gabbard is really somebody who is fully on board with that conspiracist worldview. I think it is fair to say, and this is a guess, but I would not at all be surprised if her tenure at ODNI, if indeed she does end up in the position, looks a lot less like actually doing the work of the director of National Intelligence, which is, it's worth saying it pretty tough clump and more like combing through, you know, the material available to her, to irresponsibly release material that she feels will be, you know, useful in some way or another and bolstering this or that conspiracy theory.

Because that is exactly what we saw with Radcliffe. And again, it's worth, it's worth emphasizing, you know. There is an actual job that needs to be done by the Director of National Intelligence. And I don't think there's any indication that Gabbard is interested in that or even knows what it is, frankly.

So I think there's a, there's a great deal of reason to be concerned. I mean, it's worth saying, Ben, I think to, to go back to a point that you made very early on, I believe at the beginning of the first Trump administration or possibly before the inauguration, there's a lot of concern initially that Trump would be able to use the intelligence agencies against his domestic enemies.

And you wrote at the time that, you know, really as kind of a. Post Watergate reforms. There are actually a lot of statutory restrictions on what those intelligence agencies can do. And so just to clarify, I would be less concerned about Gabbard or someone along GA's model using the intelligence agencies sort of, to target Americans and more concerned about using that position to release material in a way that could be conceivably helpful for Trump, but could potentially really damage American intelligence and security by revealing sources and methods, all that kind of thing.

So I think it is extraordinarily dangerous to be clear. Scott, your thoughts.

Scott R. Anderson: I have a slightly different take, although I don't fundamentally disagree with that between Tulsi and Gates because I think they're two very different sort of problems with them as nominees. Gabbard with Bear in mind, Gabbard is a like recent convert to Trumpism, but is not somebody whose professional career has been tied to Trump in the way certain other nominees have.

Right. For senior positions. She backed Bernie Sanders in 2016, right? She walked a careful line around the first and second Trump impeachments, but said lots of pretty condemnatory things about Trump, even though I think, I can't remember which impeachment was, I remember one at least, she refused to actually vote one way or the other.

She voted present. So like she, she's a bit of a wild card for all involved, I think is the real answer. That to me suggests that this is not a position that they are relying upon having somebody who's going to implement some broad agenda on Trump's behalf. 'cause she is probably not somebody who, with that level of confidence that you would have to implement something.

I think actually Radcliffe is probably like a closer concern there because this is somebody who's been much more in the camp for backing up different aspects of a Trump agenda in a variety of capacities for for many years. Gabbard is a little more politically unorthodox than that, at least a recent conversion.

But maybe she's done something to convince people internally she is in the long haul on the bus to do these things for the Trump administration. Who knows? I think the bigger concern with her is that she's just. Mercurial and has very unorthodox worldviews and that is really disconcerting if you are a major intelligence ally of the United States, particularly the Five Eyes partners, our closest allies with whom we have very, very routinized intelligence sharing arrangements that put their own assets and capabilities at substantial risk by virtue of sharing with us.

We do that with a high level because we have a high level of confidence in institutional arrangements and the people who head them. And when you put somebody in mercurial and unpredictable in that position, that is a big. Problem. In some ways solving somebody mercurial in a defense and intelligence position is even more concerning than having somebody who is just in the bag for Trump, because at least if they're in the bag for Trump, you know, that person probably is less likely to do something unpredictable in a way that the Trump administration would not support.

I'm not sure Gabbard is that person. I think Gabbard is a much more wild card for all involved. And that's disconcerting and particularly Disconcert intelligence. That's why it's so bizarre. That's why they put her. But I suspect it's because her biggest commonality of overlap is around national security and foreign policy issues.

And Secretary of State was already taken, if I'm being honest as his defense. Gates is a whole different game. Gates is in the bag and he's in the bag for the institution that is in the capacity to do the most to do what Trump has said he wants to do, which is make life difficult for his enemies.

Domestically, I think there is less that can be done in that space than so many fear because we do have a legal process and it's not easy to subvert, but there's lots still that can make life very uncomfortable for a lot of people, and, and that's why. Gates is so concerning. But we also have to bear in mind like Gates is also detested by Republican caucuses in both the House and the Senate.

And that itself is like a really, really notable part about this nomination, right? Like even up until Gates, I think you had Hegseth and ard, people were like, I don't know about votes in the Senate, but I don't think anybody was like this. This is definitely a, a big risk factor. If those were the most controversial nominees, I think people might say, okay, like, there's gonna be a little bit of close call on these, but it's kind of within the realm of a reasonable risk factor for an administration Coming in.

Gates is a huge shot across the bow because, you know, lots of folks in Congress already dislike him. And again, it just says something really unique that that's the person you're putting in such a prominent position. And it's worth noting. It's somebody that Trump arrived at very late. Like the process we are aware of, at least from reporting behind Gates is that there's a whole list of other potential nominees for Attorney General.

Trump shot them all down and then there was a, a two hour flight at some point where his chief of staff and other people around him and Gates himself were there and they arrived at this conclusion. By some reports it was done without the knowledge of chief of staff, Susie Wiles. Who knows whether those are true or not.

The key point being like it was a shoot from the hip, sort of very Trump-like decision to arrive at this. And it means, I don't think it's optimal from anyone's perspective, including Trump's perspective. 'cause the amount of heat that's gonna come around to get this person confirmed, if you get them confirmed, is gonna be so huge.

It's, it makes them much less effective at the job. So it's just odd to me again, like I think this is about Trump wanting to put somebody in who's gonna implement his agenda kind of blindly and be on the same page as him. And that's a problem. But even if that's what you wanted, there's a lot of other people he could have picked other than Gates that would've been easier sell in the Senate.

And yet he's settled on gates and I find that absolutely beguiling.

Benjamin Wittes: Alright, so let's turn briefly to a, a nomination that is notionally mostly outside our area, but it has occasional interactions with our areas. And that is Robert F. Kennedy Jr. Being nominated to head HHS health and Human Services.

Mostly outside of law fair's purview, but Quinta, there are these components of HHS, like for example, the C, d, C and the components of of NIH that work on vaccine matters as well as the FDA, which has jurisdiction over drug approvals, including for massive public health problems like, you know, COVID or biological agents of whatever kind.

I don't know. That I have much to say about the idea of appointing somebody who doesn't believe in vaccines to run vaccine policy for the government. Other than that, if you, it seems a little bit like putting a flat earth or in charge of nasa and I'm just curious for your thoughts on it. I think it's

Quinta Jurecic: worse than that because presumably if you put a flat earth in charge of nasa, all they would do is just not send rockets into space.

Whereas putting an anti-vaxxer in charge of the Department of Health and Human Services is going to kill a great deal of people. We mentioned America and Samoa earlier. There's a story where RFK Junior encouraged the government of American Samoa not to vaccinate children. I believe it was against measles.

I'm not entirely sure, but a number of people died as a result. You know, we are incredibly dependent as a society on life-saving vaccines. Obviously COVID is the most recent and notable example. But that is not the only vaccine that Kennedy has spoken out against. And you know, Alex Azar, the Secretary of Health and Human Services under Trump at the beginning of COVID, was really instrumental in getting operation warp speed, which led to the development of the COVID vaccine on accelerated timeframe moving.

So I think. You know, we really, I cannot emphasize enough what a disaster this would be for public health and the security of the country. I think it is worth emphasizing that, as with the other appointments we are referencing, I don't think there is some clever strategy here. I mean, Scott, you referenced that it's sort of bewildering if you try to figure out what Trump is doing here.

I don't think he's doing anything here. I think he, he likes people who suck up to him and he appoints people who flatter his worldview in some way or another. And that is what he is doing here. There is not a strategy there is not a, you know, brilliant plan here. It is putting people in charge who are in some way aligned with his worldview and who are in a position to do a great deal of harm.

That may well mean that we end up in a situation where, you know, these people cannot make it through to a Senate confirmation. That, of course, raises the question of whether he'll attempt to sort of force some, I think arguably unconstitutional recess appointment measure. But ultimately I think it's a mistake to look at these plans and say, you know, what is the masterful gambit here?

There is none.

Benjamin Wittes: So, speaking of arguably unconstitutional gambits to force recess appointments, I wanna turn to Alan on this 'cause I know you've done some, some research on this, but first I wanna give a shout out to the person who called this out because it actually took some courage. And it's somebody who, you know, may not be popular in a lot of our listening circles.

But Ed Whelan of the Ethics and Public Policy Center, who's a very conservative social conservative lawyer, former Scalia clerk former judiciary committee staffer who has devoted his career to opposing democratic nominees for courts and supporting Republican nominees for courts. Yesterday or sorry, the day before, I can't, the time.

Blends together tweeted that this scheme was being discussed seriously and maybe the plan on the part of the Trump administration, he's getting attacked on in MAGA world social media. And he did it because it's wrong. And he felt strongly about it. He felt that it was an attack on the Senate's prerogatives and the checks and balances of the system.

And so I just wanna say, look, you know, we all have our differences, but there are times when, you know, the rule of law is just the rule of law. And so I wanna. You know, give a hat tip to Ed about that. I thought it was courageous and and I thought his analysis both in National Review and on his Twitter feed and then in a Washington Post op-ed was frankly clear and superb.

And I wrote, I wrote about it in my own column yesterday, which is Thursday. Alan, how seriously should we take what Ed calls a cockamamie scheme to appoint the entire Trump cabinet by recess appointment?

Alan Rozenshtein: Sure. So this is, involves a little bit, I'm unpacking, but I'll, I'll try to be brief about it. So here's the background, how this works.

So in the constitution principle officers, and here we're talking about cabinet heads. The people we've been talking about today have to be at some point confirmed by the Senate. But there is a large exception to this, which is that the, and the Constitution outlines this, that during recesses so breaks that the Senate takes either between the annual sittings of the Senate or when it takes breaks throughout the year.

During those recesses, the, the president can appoint individuals and their term. Goes through the end of the next session. So, basically what this means is that if President Trump were to do a recess appointment soon after his inauguration, that recess appointee would be in power for the next, essentially two years.

So it's quite a substantial power. The reason this is in the constitution is because in the, you know, late 18 century when this was all being written, there were no planes. There were no cell phones. And when the Senate was in recess for several months, that was a real problem. Logistically, you could not get them back together in time to, you know, confirm an Attorney general or something like that.

And so there's this recess clause. Everyone understands that this recess clause is basically of the sigal organ. And today it really serves as an end run around the Senate confirmation process. But to be fair. Presidents of both parties have used this, and it is quite well entrenched. The main block to the president being able to do recess appointments is the ability of the Senate.

Even during a recess to every few days do what's called a quote proforma session where the Senate gavels in for 30 seconds and then gavels out. And by having these technically real, but in reality, fake sessions they managed to only have a recess for basically three days at a time. And the Supreme Court in a 2014 case called Noel Canning held that a three day recess is too short to a allow for the president to make a recess appointment.

So this is the background, sorry. But it's necessary for this cockamamie idea. And the cockamamie idea is as follows, the Constitution provides that no House of Congress can adjourn for more than three days without the consent. Of another House of Congress in another part of the Constitution. It also provides that if there is disagreement among the houses as to the time of adjournment, the president may adjourn Congress until the time he shall see fit to basically bring them back together.

And so the concern that ed raised is that if the president can get the House of Representatives, specifically speaker of the House, Johnson on board, he could have Johnson announce that the house is going into recess. Right? Or rather announce that Congress is going into recess, and then if the Senate under majority leader Boon says, no, we don't want to go into recess.

Well, that means that there's a quote, disagreement at which point the president could adjourn Congress adjourn the Senate, then there would be a recess for as long as the President needs, because now the Senate is adjourned, right? And presumably cannot have these pro forma sessions, at which point the president can recess appoint his entire cabinet basically for the, for the next two years.

This would be a. Profound usurpation of the senate's advice and consent power. I'm not actually at all convinced that this would work. A lot depends on what one thinks the Constitution means when it talks about disagreement. As to the time of adjournment, it may very well be that what it actually just means is that as long as the Senate says, okay, house, you can adjourn.

That's fine. We're not gonna adjourn, but you can adjourn, then there's no disagreement. But look, there's enough text there. And this provision has never been tested because literally no president has ever attempted to adjourn both houses of Congress. That there'd be substantial legal uncertainty, and that might tempt a President Trump if he can get Speaker Johnson to play along.

To do this, I, I think this would happen. This would be extremely dangerous. It'd be extremely dangerous because it would allow the president to recess a point. His entire cabinet, including people like Gates and Gabbard. Right? It would also, I think, probably be the closest we get to a real live constitutional crisis showdown that we have had, you know, in, in the Trump age, because it is quite an authoritarian thing for the president to adjourn the legislative branch on an indefinite basis.

I hope it does not happen. And I would've said several days ago when the most controversial presidential appointee was t was Christie Nome, that it was certainly not gonna happen. But if the president is going to appoint Matt Gates to be Attorney General, Tulsi Gabbard to be the director of ODNI, I'm looking at media reports that suggest that cash Patel is in the running to be appointed for the director of the FBI, you know, down and down the list.

Right. That suggests a level of. Let's call it Trump unchained, that he might try to do this and, and what happens once the president, you know, potentially tries to adjourn Congress at that point we are in, I know it's been a cliche to say there are the Trump, Trump times that we are in quote unquote uncharted waters, but at that point we have very much gotten to the part of the map where it just says there'd be dragons.

Benjamin Wittes: Alright, we are gonna wrap in a moment, but before we do, I want to hear from Scott, Mary, and Quinta about whether this scheme is likely to happen, and if not, what is gonna prevent it from happening? What's the mechanism by which the democratic forces of the country, and I mean that with a small D not a, not a a, capital D can ensure that Trump's cabinet nominations normy odd and off the wall insane.

Are subject to the normal Senate advice and consent process. Scott, then Mary, then Quinta.

Scott R. Anderson: Yeah, I, I don't know whether this will happen or not, but I think it's worth thinking about what happens if this does happen afterwards, and how that enters into Trump's calculus if he's a rational actor, which again, I, I'm not always convinced ideas, right?

I think you get a lot of shooting from the hip on this. If this happens, there will immediately be a lawsuit and will be adjudicated all the way up to the Supreme Court. Because you need only one of these agencies to take any sort of enforcement action against somebody who wants to challenge it, and then they will have standing to pursue that litigation all the way up to that.

The idea that that official, and therefore all the officials appointed during this recess session, are appointed in unconstitutional manner. It's like what happened with Matt Whitaker during the first Trump administration, or what's happened with the CFPB at various points about questions about their, how they were set up and erect in their leadership structure.

That will happen and if the Trump team loses when that happens, and I think there is a very, very substantial chance they will even under the Supreme Court because I think there are real legal problems with this theory, although I'm not convinced a hundred percent that they'll lose, but I still think they will.

Or at least at substantial risk. That means a ton of actions. The entire government being headed by these officials will be. Brought into serious legal questions. Some of it can be remediable. You may have subsequent officials if you can get somebody else confirmed or acting officials kinda ratify in ways that can be saved.

But a lot of enforcement measures, a lot of government measures. A lot of regulatory measures will be nullified or brought in a serious legal question that should really bother people who wanna see Trump advances substantive agenda. So the thing is, if you wanna govern, you have to govern effectively and you actually have to play by the rules to do that.

And I, and I kind of think there's enough people in Trump's orbit who actually want to do things that they will prevail upon him not to take the step, but who knows? I don't really know. And Trump himself is mercurial and hard to predict, and that's where it comes down to. That said, if it doesn't happen, it may nonetheless have an effect because the threat of doing this may be enough to give a couple of Republican senators saying, yeah, I don't wanna vote for this guy, but.

Trump's gonna go it anyway. And the other thing, we'd much more damaging to the Senate as an institution. So I'm gonna, you know, bite the bullet and go ahead and vote for the guy who I don't wanna vote for otherwise. That I think is the more, most real, more realistic outcome is that it helps push a few more Republican senators into the campus.

And these people, maybe not all of them, I still think Gates is the furthest reach, but you know, it's gonna put some pressure on the Senate regardless, even if it is a bit of a IC victory if Trump does decide to pursue that path.

Benjamin Wittes: Mary.

Mary McCord: Yeah, I think that last point Scott made is, is what exactly what, why I think the timing of all of this is happening right now, as we indicated at the top of the hour, like this is so early to be announcing choices for cabinet, and the reaction to some of these choices has been.

Pretty negative, but we have a long time between now and January 20th and a lot of pressure to be brought to bear against individual senators. And I think the threat of the recess appointment will play into that pressure. And I, I could see senators going weak need on some of the announcements that right now they seem to be expressing some opposition to.

In terms of the scheme itself, I agree with Scott's analysis sort of legally there will be litigation. I do think, you know, Noel Canning doesn't speak to this issue, right? It's about can an intercession recess, BA recess for purposes of, of the, the appointments consistent with the Constitution.

But it doesn't say, as Alan said anything about what is a disagreement. And I also would say, to do, even if, even if Speaker Johnson was willing to say, okay, we'll we'll seek a recess for both houses. And I agree also with Ellen that, that, you know, the Senate could say, fine, you guys go, but we won't.

'cause sometimes that does happen. One house wants to recess and so they reach that agreement. And I'm not sure it would be a disagreement for them to do that. But the speaker can't do this on his own. It does take a concurrent resolution. And now, not that I feel super comfortable that there would be people, enough people to vote against it.

There might be some, because even though the house doesn't have the power of advice and consent, you know, to confirm a president's appointees, one would think that the legislative branch would, would want to maintain some semblance of separation from the executive branch. And if there is capitulation to this scheme by the, either the house trying to drive a disagreement, that allows the president to force an adjournment, or if there's even worse capitulation, because we have.

Senator Thune even say, well, we'll look into this idea of recess of recessing and recess appointments. If there was that type of willingness to just give up their authority as a co-equal branch of our government. That's a pretty shocking thing. They're essentially neutering themselves, and I, and I, and I do think that there are some people who would want to push back on that and save some level of the legislature's power for themselves.

But again, I may be putting too much faith in our elected Congress members.

Benjamin Wittes: Brenda, you see the world through black colored glasses and you get the last word here. Do you think this is gonna happen?

Alan Rozenshtein: They're very accurate classes these days. I will say

Quinta Jurecic: two points. First, I would say and Alan, you've looked at Noel Kenning more carefully than I have recently, but I do think it is worth noting that in the concurrence to that opinion, which was signed onto by chief Justice Roberts, justice Thomas and Justice Alito along with of course Justice Scalia, who is obviously no longer on the court.

Those three justices currently on the court argued that only appointments that became vacant during the recess could be filled with recess appointments, which is actually what the text says. So if, if those. Three justices still believe what they signed onto then that would obviously substantially limit the president's ability to push this idea.

I think it's also worth noting as we're talking about constitutional crises, that of course this, this question is sort of adjourning Congress is. I think functionally similar, analogous to the Prorogation of Parliament, which of course Boris Johnson ca used to cause a constitutional crisis in the United Kingdom in 2019 when he provoked parliament to avoid oversight of his, his Brexit plans when he was Prime Minister.

That UK courts essentially said, nice try no dice. So we will see if the Supreme Court might have the same view here, but I do think it's relevant in so far as obviously the, you know, the relationship between Congress and the executive is designed sort of in response to the relationship between Parliament and the king who used to also have the power to prorogue.

So just mentioning that. The other point that I wanna make is that I think that we need to understand this effort as Scott and Mary have pointed out as an effort to kind of intimidate senators in advance. And we also need to understand it alongside other reporting that's been put out there about the incoming administration's intent to argue for the unconstitutionality of the Impoundment Control Act, which of course was passed after the Nixon administration in response to President Nixon's use of impoundments.

So essentially refusing to disperse funds that had been provided for by Congress, essentially as a way to unilaterally get rid of programs that Congress had funded, but that he disliked. The IMP Empowerment Control Act prevents the president from doing that. It was one of the statutes that was at issue during the first impeachment over Ukraine.

It was aid to Ukraine that the executive branch did not release under President Trump. And so if Trump comes into office and says, both, I have the power with the ascent of Mike Johnson to essentially force a recess and force my appointees through without the Senate exercising the advice and consent power, and I have the power to ignore essentially the congressional power of the purse.

Those two things together really read to me as an effort to govern as an executive that is completely unchecked by the legislature to the extremely limited extent that the, a Republican controlled Congress has shown any interest in checking a Trump controlled executive to begin with. And I think that is a.

Deeply, deeply concerning especially given how we have seen Congress under their repub, under Republican leadership, all too willing to capitulate to him in the past.

Benjamin Wittes: We are going to leave it on that very cheerful note. Quinta Jurecic, Alan Rozenshtein, Scott Anderson, and Mary McCord. Thanks so much.

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