Ben Wittes: Who the F*** Are You?

Hello and welcome to the Bullard Podcast. I'm your host, Tim Miller.
I'm so excited to have back Ben with us. He's editor-in-chief of Lawfare, senior fellow in governance studies at the Brookings Institution.
He also writes dog shirt daily on Substack. What's up, Ben? Oh, you know, it's just another day in paradise.
You know, every time you think you've hit bottom, you scratch and there's a Dan Bongino underneath. I mean, you know, I got to tell you, Tim, I've been ready for a lot of things.
That one I was not ready for. I think it's cute that you think that we were at or near the bottom.
We're not even, we can't even see the bottom from here, Ben. I'm just, you know, when you're falling down a well, it always feels like, not that I've fallen down a well before, but it always feels like you're about to hit the bottom and then you realize there is no bottom.
It just goes down into the center of the earth and there is Dan Bongino waiting for you. Hugging you on the way down, bringing you down with him.
We're going to get to Dan Bongino. We've got so much to get to.
I've been binging on the lawfare part. I'm not alone, actually.
I had a friend that sent me a screenshot of something. If if you're playing on CarPlay, it accidentally gives you a double screenshot.
Have you ever done that, where you send a text to someone? And anyway, they were also listening to the Lawfare pod. So many of us want to understand what's happening in the law.
You know, I appreciated you and Ezra Klein saying that things must be really bad if you were listening to the podcast again. A lot of people took a break from us for four years.
And, you know, I understand that there were happier times, but when things really, really suck, we're there to hold your hand. All right.
Well, here's the thing for me that was so disorienting on my plane flights as i was coming in and out of dozing listening to your dulcet tones it's so strange to have to match the considered legal analysis that's happening on the panels with what you're responding to which are executive orders or decrees by unelected bureaucrats that seem to have been dictated by voice note while they were playing a first-person shooter game, like are written in marker or poop smeared. And then you guys are like, whoa, we have to look at the reference.
Could they at least get the apostrophes right? The editor in me really bristles at this stuff. Yeah, so Anna's, like, referencing precedent from a 1952 case.
And it's like, is this, I mean, that must be challenging for you to have to figure out, how do you take this stuff seriously, I guess is my opening question. Okay, so the first point is you have to bifurcate your brain.
If you are talking in politics, you do not have to take this stuff seriously and you shouldn't take it seriously. And the right approach is mockery, derision, expressions of anger, all the feels.
But if you are us and you're trying to track litigation over it, you're trying to figure out what the pressure points are in which things can actually be stopped. We're not the people who are doing town halls.
We're not making political ads. And God bless you guys for doing that stuff.
That's not what we do. What we do is we try to give information to legal practitioners who are working in this space.
And that means actually cutting through a lot of that stuff and talking about this in the language that people are going to have to talk about it in briefs, challenging it in briefs, defending it. And it means taking the defenses seriously, including the 1952 cases, which you would quite reasonably be reacting to by saying, wait a minute, Elon Musk doesn't give a crap about what happened in 1952.
And I think you just have to be able to hold multiple ideas in your head at the same time. We're trying to talk in the language that the district judges are hearing this stuff in because we're trying to provide a resource that's useful to people who are engaged in or following in detail those litigations.
Yeah, I kind of hated that. I kind of got sick of the buzzword, sane washing, because it just got overused and misused.
But what you guys, to your point, the legal briefs that you're analyzing when Musk is like, you're fired if you don't reply to my email or, you know, there's an executive order is like, you must call it the Gulf of America. And then legal briefs get written defending their positions that like literally, I guess, sane wash isn't even the right word.
It's like they legal wash it, right? Like they have to come up with fancy justifications for like Elon's ketamine fueled impulses. And so I guess that is then the space you end up in.
It is inevitably the space we end up in. And I do not begrudge anybody who says, wait a minute, that's not the space I want to be in.
I want to be in the space of primal scream therapy. And I'm offering.
Right. And like anybody who wants, like for the people who want primal scream therapy, I actually like lawfare is not probably the best place for that.
But if you want to understand, so my colleague, Anna Bauer has been on a whimsical one woman quest to identify who the actual administrator of the Doge is. And this is a really like, it should be like, who's the head of a federal agency is something we typically know, but the justice department hasn't been able to answer questions about this.
This is not a one-woman quest anymore. It was a one-woman quest.
I was listening to this on the podcast, but did you see this from yesterday? Judge Colleen Collar-Cottell. Yes, well, I was about to come to Colleen Collar-Cottell.
And yesterday, there was a hearing in which Colleen Collar-Cottell, who is an extremely fine district judge in Washington, basically said this question really matters because, you know, there's all kinds of things that presume that there is such a thing as a doge, right? And it has a head and we can evaluate that head under whether that's a legitimate thing under the appointments clause. Well, if we don't know who it is, you can't do any of that.
And so our role is to ask the nerdy questions that the courts are going to end up having to ask and wanting to ask and which things are going to turn on. And look, that's not for everybody.
And for those, I don't know if the bat endless screaming is still on twitter but it's a you know a little bot that whatever you tweet at it it's it tweets back and for those who want that you know that's not lawfare i love endless screaming i appreciate that yeah it's different things different strokes different strokes i just i launched my podcast focus on gen Z issues with all Gen Z guests. Our episode two is out today, FY pod.
If that interests you, go subscribe. But like, I've already had some comments this morning from people complaining about the 24 year olds.
And I was like, maybe this isn't the podcast for you. If you're going to be very annoyed by 24 year olds.
And that's okay. I want to get back to the judge, Collar Catelli, was pretty striking the new york times article this morning about this uh bradley humphreys is the lawyer for the government who just couldn't answer this question who is in charge of doge who is the doge administrator and i was listening to you and anna talk about that you know maybe this is just my politics brain on but like the reason that they're aligning this is all related to FOIA, right? Like, is that why? Because Elon wants to avoid having to have any transparency or accountability.
And so if he's technically in the office of the president, the rules are different for him than if he was the administrator of a government agency. Is that what this comes down to? Or is there something else I'm missing? That is part of what it comes down to.
So general rule of thumb that if you are the White House generally, the executive office of the president, a lot of it for a lot of purposes is exempt from FOIA. It's also exempt from a law called the FACA, which is the Federal Advisory Committee Act.
If you set up an advisory committee in the Department of Homeland Security, I was on such an advisory committee. It has to follow certain rules.
It has to have minutes of meetings, et cetera. If you're just the president's chief of staff, you don't have to do any of that stuff.
So there's a lot of that. But there's another factor, which is, I think, what Judge Kohler-Catelli was getting to, which is something deeper, which is, you know, if you're the doge, whatever that may be, and you're sending around orders to the federal government, then you are actually wielding executive power.
You're not merely an advisor to the president, like the chief of staff whispering in the president's ear. You know, you're not allowed to wield certain executive power without being nominated by the president with the advice and consent of the Senate, right? And so one question is what level of transparency there is.
Another level is, you know, pardon me for putting it this way, it's the who the fuck are you question, right? You're not the Secretary of Defense. You're not the Secretary of Homeland Security.
You're not the Secretary of State. Who are you to- You are not the boss of me.
Right. Who are you to be dismantling USAID or taking apart? Maybe the answer is, the formal answer I think has to be is he's not doing any of that.
He's actually merely whispering in the presidency or in the president is doing that. But then you have this little problem, which is, you know, what about these emails, which we all know probably exist, where he actually is doing things or the little monkeys under him are, you know, big balls, or whatever his name is, is actually wielding executive power is ordering people to do things.
And so there's this question what the formal

structure is by which a bunch of outsiders show up and wield the executive power of the United States.

Yeah. So here's a tangible example.
This is in the Matt Buys story in the Washington Post

this morning, which is really alarming and good and terrifying all at the same time.

But he's writing about the USAID and the funding and how funds are being dispersed.

And here it says, Rubio decreed that certain critical programs, such as aid to Ukraine

and cost related to the PEPFAR program to combat HIV in Africa would continue to be funded.

Several times, USAID managers prepared packages of these payments and got the agency's interim leaders to sign off on them with support from the White House. But each time, the Doge employees would veto the payments.
So meanwhile, AIDS clinics shuttered and staff found themselves stranded in unstable countries such as Congo, et cetera, et cetera. So this is an example of what you're talking about.
Exactly. And so one question is all the transparency stuff.
But another question is who the heck is the Doge people who vetoed that and what authority do they have to do that and where does it come from? This is the Secretary of State who ordered something and it's vetoed by, you know, Big Balls or whatever his name is, right? Like, where does that authority come from? Yeah. I looked into it.
They named the two guys. It wasn't Big Balls.
I guess Big Balls doesn't. I guess this is outside his remit, but it was, I think it was the guy from Nebraska that also uncovered the scrolls.
And then it was like one of Elon's vaping staffers at SpaceX, one of his interns, I think. The point is the same.
I just kind of use the name big balls to refer to all of them. But it's a little bit, you're pumping them up a little bit more than I think they deserve.
Some of these guys, I don't know. I actually think it's other doge monkey erasure is what it is.
No, look, it's a serious question. And there's a reason why a federal judge is focused on it.
And it is our job to spot those questions. And so, you know, Anna spent last week being the person who was shouting about this.
Like, I'm sorry, we have a federal agency closing down the federal government and the United States Justice Department can't even answer the question who runs it, you know? And so like, yeah, is that nerdy? Yeah, it's really nerdy. That's what we do.
Well, and what we do, what I do here is now take this moment to appreciate because we all need this. The fact that little Marco Rubio is the first secretary of state in history to get vetoed by a 23 year old who just has decided that his decrees are not worth the paper that they're printed on.
So Marco, despite being whatever that is in line to the Pres fourth yeah he is he's also reporting to a 23 year old berkeley dropout uh who is uh you know playing minecraft while vetoing his statements okay so there's that we're gonna come back to i want you to educate us on these lawsuits that are happening right now because it's really important but it's that's also very thick and so I want to start with Eagle Ed Martin first before we get back to the lawsuits. Eagle Ed is a U.S.
attorney from D.C. We've been discussing him a lot.
He put out a statement yesterday that I think it's worth us breaking down. It's a legal document.
He says this, as President Trump's lawyers, there's a typo there. He acts as if the word Trump is plural.
It's T-R-U-M-P-S apostrophe. So it's a pluraled apostrophe, even though it's a singular human.
It's also a legal error there. He is not.
Well, no, we're going to get to legal error. There are many errors in this.
It's a two-sentence statement that contains abundant errors. Are we doing it's like okay stop from the you can if you want as president trump's lawyers okay we are proud to fight to protect his leadership as our president and we are vigilant in standing against entities like who do you think the entities are that he's vigilant and standing against i'll tell you the associated press i see yeah entities like the ap that refuse to put america first there it is again as president trump's lawyers we are proud to fight to protect his leadership as our president and we are vigilant and standing against entities like the ap that refuse to put america first that was an statement.
I think listeners might need to know why the AP is not an America first organization, and that is because it refuses to change its style book to call the Gulf of Mexico the Gulf of America. And I want to side with Mr.
Martin on this, because what does the First Amendment mean when it says freedom of the press, if not the freedom of the press to follow the direction and threats of the president? And, you know, the president wants us to call it the Gulf of America. And these lame shit reporters are refusing to do that.
And I just think that's why we have a U.S. attorney's office, Tim, so that he can represent the president in his coercive threats.
By the way, this man is the acting U.S. attorney.
He was recently nominated to be the permanent U.S. attorney after threatening multiple members of Congress with investigations for making threats.
And I am, of course, speaking sarcastically when I praise him. Well, I'll say this to Eagle Ed Martin, because they've obviously got nothing else to do as the U.S.
attorney for the Washington, D.C., you know, prosecuting criminals, prosecuting corruption,

prosecuting terrorism. He doesn't have to worry.
None of that is important. So he's been focused

on the important things. So if he wants to stand vigilant against entities that refuse to put

America first, I welcome it. I am calling it the Gulf of Mexico and it will be the Gulf of Mexico.

And that is a fact, Ed Martin. It is the Gulf of Mexico, and I dare you to come for me.
Bring it. Can I just point out, though, that it's kind of insulting that they went after the Associated Press for this instead of the bulwark? I mean, the Associated Press has merely not changed a style book.
You are out there attacking them every day. You're insulting little Marco.
I mean, you're doing so much more than the Associated Press. Not only am I refusing to put America first, I was actively rooting for Canada in the hockey match.
Okay. So I'm putting Canada first, actually.
So bring it. Mr.
Martin, you got the wrong target here. Stand with America against the bulwark, and particularly Tim.
With vigilance. Where is your vigilance? I don't know if this is the law and order they're going for.
I guess so. In other news, there's a couple more things from Ed Martin's department.
You'd mentioned the letter he sent to Robert Garcia, threatening him for a figure of speech used on CNN. In more tangible actions, yesterday we had news that Corey Mills is a Republican congressman from Florida.
He's not one of our finest congressmen. Federal prosecutors Friday declined to charge Florida Congressman Corey Mills, who was accused of assaulting a woman in his D.C.
apartment. The U.S.
Attorney's Office turned down a request from police to seek an arrest warrant. Story goes on.
I guess the woman had some injuries, some visual injuries, and her phone had broken. But then she also was, I guess, backing off of her charge.
So there's that. Don't know exactly the details, but again, not a great sign when the DC police go to try to arrest a Republican congressman and Ed Martin's office is like, nah.
So agreed. I also think there's an issue about the conference that you were at this weekend, which was infiltrated by Enrique Tarrio and the Proud Boys and later received a bomb threat that required the evacuation of the portions of the facility that Principles First was using.
You know, you can get a long way in intimidating your political opponents merely by not investigating thoroughly things like bomb threats or efforts to intimidate people. And if you ask me, do I have confidence that the FBI under Kash Patel and Dan Bagino will thoroughly investigate that bomb threat? And do I have confidence that the U.S.
Attorney's Office under Ed Martin will prosecute aggressively the results of that investigation, should they turn up proof beyond a reasonable doubt of a particular perpetrator? The answer to both of those questions, unfortunately, is no. And that is how you build a climate of impunity in going after, you know, the enemies of the president.
And, you know, this is a picture, the Corey Mills example, maybe an example of this, but the fact that you and I can't sit here and have confidence that the threats that were directed against you guys will be, and against Harry Dunn and the officers in particular, the fact that you can't have confidence of that and you would be a fool to have confidence of that is a, I think, more dramatic example, because it actually affects political dissent. Thank you for shaking me from the sarcastic posture I sometimes fall back on to deal with the trauma that is our lives right now, but you're right.
I mean, like the seriousness element of this, it may be even slightly worse than you're saying, right? Obviously, we could have no confidence that they're going to investigate it, but as Fanon said at the conference, which I played on yesterday yesterday's pod, I guess a feature, not a bug, right? Like they want Tario to be menacing dissidents opponents to this administration. Like they want it to happen.
And just to give, I mean, this is something that you know, and you've experienced 50 times, but just to give your audience a sense of how it trickles down.

I had a meeting yesterday with some foundation execs who are supporters of Lawfare. And one of the questions they asked me as we talked about their support of Lawfare was our physical security.
And it's something that every organization that works in this space has had to think about. You can't just walk in off the street to, you know, the Bulwarks office in Washington.
And as we, you know, budget for things, one of the things we have to think about is, you know, what if somebody comes after us on some, you know, garbage congressional investigation, right? That's the political investigative harassment stuff. But there's also what if Enrique Tarrio shows up and tries to intimidate you? What if, you know, how do you as a small organization deal with that? And this is a very picturesque example.
And part of the answer to the question historically is that Merrick Garland makes a speech about it and says, we are going after people who make threats and then they do it, right? You take away that protection and you become much more vulnerable to this sort of thing.

Well, this is traditional law and order. I mean, it's a niche example of something that people understand in their common lives, right? We hear a lot about how people are frustrated in places like San Francisco or in DC even.
This happened to me in DC just this weekend. I forgot to bring deodorant to D.C.
because I did not want to instinctify my fellow panelists at the principles first. I went into the CVS and it's locked.
Just whatever. You got to ask somebody to come and unlock it.
That's annoying, but it is a sign that the public safety in the area is not such that people feel comfortable keeping the deodorant out from behind lock and key. This is analogous to that, right? It sucks.
Small nonprofit organizations that want to protect people's free speech rights should not feel like they need to have a security guard at the front of their office in a free country. And that is a freedom that I think is not going to be available to people over the next couple of years.
Yes. And there's a physical security element.
And there's also, you and I both know people who've done advising for local election workers who've had to raise tens of millions of dollars to pay legal bills because they're getting harassed by state attorneys general and congressional committees. And these are costs of doing business now that, non-political work, let alone the sort of stuff that principles first and you guys are doing, which is, you know, active political dissent.
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All right, so this is obviously related to the FBI. As you've mentioned a couple of times, you have friends who have been on the top top floor of that building the Bongino thing because I can speak I guess for somebody that is a listener that doesn't have a ton of experience with the FBI right like I never worked in the building never been investigated by the FBI never had an FBI like I just you know I know what I read in the newspaper like anybody else and so I've been talking to some people who worked there over the past few days, it's actually the Bongino appointment that has seemed to be more alarming because the director is kind of a political role, whether you want it to be or not.
It is a little bit of a figurehead role. Obviously, there are big decisions that come through the director,

so not to minimize that at all. But day-to-day, the role that Bongino has been chosen for

is the person that is managing the bureau and managing the agents

and managing these big decisions.

And it sounds like that has really shaken people up

in a way that the Patel thing didn't. Is that fair to say, do you think? Well, I would not say that the Patel thing didn't shake people up.
The Patel thing happened in slow motion, and so people had a lot of time to get used to it. That's fair.
It also coincided either accidentally or intentionally, depending on whether you think Kash Patel lied to the Senate Judiciary Committee. Has he even denied that, actually? Has he denied that he lied? He's sort of denied it.
He said he had nothing to do with it. But he hasn't really denied it.
And of course, he was protected from being asked questions about it. But it coincided with this incredible shakeup that happened at the Bureau where they started demanding that people report on themselves and they fired a bunch of people.
And so the Patel thing, to a certain extent, I guess, faded into the background of the turmoil, right?

It was like, oh, they're trying to destroy us. And one element of that is that they've put this crazy, unqualified person in charge.
And the Bongino thing is different because it's not a Senate-confirmed position. I mean, you know more about him than I do.
He is not. This is a type of person that you literally need to watch one 20-second clip of his podcast.
You can pick one at random, and I think you get it. He's about a centimeter deep.
I mean, he is a meathead, and he's exactly what he looks like. One really, really important thing about Dan Bongino is that he is not a career FBI agent.
And the deputy director of the FBI is always a career FBI agent. He's somebody who comes up through the system.
Traditionally, in the FBI, there is one political appointee, and that is the director. And so the message that this sends is, we're going to go through all your papers, figure out if you're a January 6th investigator, we're going to fire your traditional leadership, and we're going to install at the top a political apparatchik.
and we're going to install, as you say, the day-to-day manager of the Bureau, a crazed podcaster who's not a career FBI agent. And so it could not be more insulting, and it could not be more dangerous.
Now, the part that people are talking about less, but that is, I think, even more concerning, is that they have removed the entire substrate leadership. And so not only does Kash Patel and Dan Bongino are kind of the one and two of the organization, but they're going to be able to fill all these assistant director positions,

all these executive positions. They're over time going to be able to replace heads of field offices.
And so you're going to see a very different FBI, and it is all subject to the oversight and management of Pam Bondi and Emile Bovey and Todd Blanche, none of whom has behavior has inspired any kind of confidence. And so I think it's a, you know, this is the organization that most directly interacts with Americans on, you know, with guns, with guns and coercion.
It's much more domestically dangerous if mishandled than, say, the Department of Defense. And, you know, it has arrest power.
I don't want to over-dramatize the danger because I don't want to be particularly dramatic, but it's kind of as serious as a heart attack. Yeah, look, it's extremely serious.
And we're just gonna have to wait and see how Cash and Dan act. I mean, I think that it's pretty easy to judge these guys' character.
These are not the types of people that are going to rise to the moment. You can listen to Dan Bongino's phone call with my former colleague, Mark Caputo, from a couple of years ago, where he starts telling Mark to fuck himself.
And Mark is laughing at him. And he's like, is that a request? Is that an offer? And Dan gets madder and madder.
And like, it's just, these are not the type of people that have the temperament for this job. Like, it's just, it doesn't take a psychologist to determine that.
What they actually do with their bad temperament, TBD. I will say that there's one really encouraging thing that has happened at the fbi okay great which is that you actually do see a state a sort of sagebrush rebellion among what are called the special agents in charge the people who run individual field offices who are pushing back in ways that are mostly invisible but you know, they could not get people to self-report.
And that was done with a lot of SAC encouragement. A lot of people, including the person who was made acting director, Mr.
Driscoll, who had been a SAC for six days in Newark when he was accidentally elevated to run the FBI. I mean, a lot of people have been really good because 70 years, 50 years of cultural reform at the FBI to create a rule of law law enforcement agency at the federal level has actually worked, right? And you have whole generations, it's really two whole generations, three sort of, who have grown up with the idea that there are things the FBI does not do, and there are things that it does do.
And that is not going to unplug right away. And, you know, you're going to see a lot of people get fired, you're going to see a lot of people doing courageous things, and you're going to not see a lot of people doing courageous things, but you're going to hear whispers about it.
And so I do think there's a, you know, changing the culture of an organization for bad is actually pretty hard. It can be done, but it has to be done over time.
And the FBI has some pretty cool resistance to that that has developed over the years, which the left has never appreciated and never understood, but is very real. So, one more on this, which is where I was going, is these invisible actions that we we're not seeing.
I guess I was wondering, the folks that you're talking to, like what are the worries beyond the political? We'll see if Kash Patel and Dan Bongino try to arrest Adam Schiff or whatever. You know what I mean? Like we'll see what they do as far as politicized revenge.
But what about like the stuff that it might be getting missed, right? Like when you fire all of these high mid managers, right. And when, when there's all this disruption, like what are their legitimate worries about like actual business of the FBI, like the real business of our public safety, not getting done, or is that stuff kind of just going to happen? Like people are just going to do their jobs and try not to let Dan Bongino get in the way? Like how are people processing that side of it? All of the above.
So first of all, this is something that like a lot of people who look at federal law enforcement really don't understand. We think like, oh, Danielle Sassoon and Hagan Scott, and these are

Supreme Court clerks. You lose people like that, they're very hard to replace.
With all due respect to the Supreme Court and to the Harvard and Yale law schools, they're actually easy to replace. We churn out first-rate lawyers in giant batches every year.
And if you get rid of a bunch of lawyers at the Justice Department, they're actually pretty replaceable. FBI agents are exquisitely crafted over time, right? There is no Yale Law School and Harvard Law School and Stanford Law School that churns out FBI agents.
There's Quantico. The classes are small every year.
And that's just the basic training. These are often people who have just exquisite training over time in really refined areas like art theft, which is a really important thing in money laundering, right? So, you know, you need people who really understand the art market, who really understand forensic accounting, who really have good language skills in Chinese and Russian, right? You show me a good counterintelligence agent, and I'll show you somebody who's been built over 20 years.
And so when you take those senior managers, these are cumulatively centuries of experience that you're losing. It's very unlike, you know, I'm not diminishing firing people like, you know, at the Justice Department.
You know, we tend to be dismissive of it because they're just the cops. They're actually the people whose expertise is really, really hard to replace.
And the more complicated an investigation is, the more you look to that really sculpted training of very individual agents. And that, you know, we have already lost an enormous amount of that, we're going to lose more over the next six months to a year, both because of firing.
And, you know, I had a meeting with somebody at the bureau who, you know, is stepping down. And, you know, I asked why and the person said, I just don't want to work for these people, you know, and that that is not somebody who's going to get fired, right? And that's so hard.
You can't blame them. Like, on the one hand, you want like, this is so hard.
Like I wrote about this, I felt like this was complicated from political appointments in the first trump term and i was on the side always of people should not take these jobs and they should quit if they're political appointees in the first trump there were other people like you know me and steve hayes went round and round on this where he was forced staying right it gets way more complicated in this situation like i feel horrible for somebody that's at the fbi like there's part of me it's's like, I wish that person that you talked to would have stayed, I think, but I don't, but it's just like, cause this is what they want. They want those people to quit.
They want those people to quit. And one of the things that they're doing is they're putting people in a situation that they don't know if they're going to be fired.
And so they basically, you know, in addition to the, I don't want to work for these people, it's, and they might fire me next week anyway. Right.
So let's get a safe job. Yeah.
But they might not. So, you know, and these are people with families.
They're people with, who've expected to spend their careers in the Bureau. So look, I think there's going to be a lot of turmoil.
There is going to be loss of, there has already been a lot of loss of expertise and capacity. There is loss at the top of management ability.
Dan Bongino is not qualified to be the deputy director of the FBI and his boss is not qualified to run the building. And if you amalgamate that over the entire organization and say, what is going to be the aggregate loss of effectiveness, it is going to be substantial.
And I don't know how to sit here and tell you how substantial, but it matters that we have an FBI, have had an FBI that is very, very elite. And it will matter that we will now have an FBI that is much less elite.
Well, from people who have a lot of job insecurity right now across federal government, there's been a lot of people for a president that was elected ostensibly on fixing the economy and on being a great businessman. Not seeing a lot of that stock markets down prices are still up a lot of people losing jobs or having job uncertainty.
Not a ton of people gaining job certainty under this administration with one exception, Washington, DC based employment attorneys. I was listening to the lawfare podcast and I was like, you are crushing right now.
If you are a law firm and you represent wrongfully terminated employees, this is going to be the golden age for you. I don't know that there's a lot of Republicans in this work.
So I don't know if that was intentional for the Trump administration, unintentional consequences. But I mean, you've done hours on this over on lawfare.
But so just give us the basic summary of like the state of play, as far as all the lawsuits about people that have been terminated, particularly with regards to these probationary employees. All right.
So I think you can lop group all the lawsuits about Trump executive actions into three broad categories. There are some others that are ancillary to it,

but almost everything fits into three broad categories. One is he announces policies that people think are illegal, and those policies are challenged.
So the biggest of them, the most obvious is the birthright citizenship, right? The constitution says, if you're born in the United States, subject to the jurisdiction thereof, you get citizenship. Trump says, I interpret that to mean, no, you don't.
And so some people sue. That's basket one.
There's a bunch of these cases. This is by far the smallest basket.
Some ways the highest profile. The second category is the spending freezes.
And these are, you know, Congress has said, you'll sometimes hear these called the impoundment cases. Congress has said, we're going to spend X amount of money on A, B, C, D.
and the administration issues an executive order that says we're freezing money to A, B, C, and D. And people who are supposed to get money under A, B, C, and D, either USAID recipients or Medicare, Medicaid recipients in states or the states themselves sue and say, no, you can't do that.
Congress appropriated the money. Third category of litigation, by far the largest, is Trump fires people who have some statutory protection against firing.
And these are at very different levels of the executive branch. So at the highest level, they're the independent heads of federal agencies, right? He fires all the Democrats who work for a federal agency.
There's also the Office of Special Counsel and the Inspectors General, people who have-

And the Jags.

Right, exactly. And then there's a different level, which is all kinds of federal civil service level employees.
So the Justice Department lawyers who were detailed to the Special Counsel's Office to work for Jack Smith, they were all fired. The Justice Department junior lawyers who worked on the January 6th cases, they were all fired by Ed Martin, by the way.
And these are going to be very different categories of firings because these people have civil service protections. And so all of these present different variations of the same big question, which is how much constitutional authority does the president have to control appointments and firings within the executive branch? And generally speaking, the higher level you go, the closer somebody is to the head of an agency, the more power the president is going to have and the less power Congress is going to have to put limitations on that.
But Trump has been so aggressive that he's reached down to the literally junior attorney's level at the justice. Elon has been so aggressive, but yeah.
Well, but again, Elon doesn't formally exist, right? Right, sure. And so individual forest rangers, individual justice department lawyers.
Anybody who had gotten a promotion at any level, anybody who is an entry-level employee at any department except for a couple that had carve-outs. And so there's going to be a hundred of these litigations.
There's already a million of them, but each one will present a different question. Can you fire an FBI manager who's got, you know, because he's politically unreliable? Can you fire a forest ranger because he's probationary? And though he didn't do anything wrong, you're just getting rid of all the probationary employees, right? Can you fire a Pentagon jag because, you know, jags are kind of the wimp shit people and we want to run a warrior culture here, right?

Yeah, this guy doesn't want to let us do prospective war crimes. Exactly.
We got to get rid of him or her. Yeah, I mean, if you're a Jag, you've probably said no to somebody at some point, and we're pro-war crimes now.
Can you fire all the people who've done Russian disinformation from all the relevant agencies because now we're pro-Putin, right? These are all different iterations of a common question. And I think the answer is going to be the Supreme Court is going to take very different views depending on what level people are, the reasons for the firing, and also how bad the record is.
And the good news is, honestly, they have been so blunderbuss about it that they have created, in many of these instances, terrible records for themselves that are going to be very hard for them to litigate, even in front of a friendly Supreme Court. Now, that seems expensive to me.
I know that DOGE is supposed to be the Department of Government efficiency, but it doesn't, doing thousands upon thousands of legal cases to determine whether forest rangers should be fired doesn't seem to be a particularly efficient use of resources to me but oh and oh it's so much worse than that tim i know you're being sarcastic but you're you're actually understating the matter because they're gonna lose a lot of these cases and by the time they lose them these people will have gotten other jobs And so what they're eventually going to end up doing is having to pay back wages for a large number of people for doing no work. Because the forest ranger is going to go get a job in eco-management from the- Firefighting.
I think a lot of needs. Yeah.
And the Justice Department lawyers, Justice Department lawyers are pretty expensive, by the way. They're going to all end up eventually at law firms.
They're going to drain the swamp by moving deep state Justice Department lawyers from the government to Washington, D.C. law firms.
And then they're going to pay them for not the law firms that are suing the government and the lawyers individually. So that's going to be helpful.
Exactly. So you're not going to save, you know, like you can say, oh, look how much money we've saved in wages we're not going to spend.
You're going to spend them and you're going to spend the money defending the lawsuits, which by the way, you fired some of the lawyers who were going to do. So how is like the Justice Department is going to have, you know, they're quite short staffed now in the civil defense area.
So it's pretty stupid as a way of saving money. There are ways to downsize the federal government, some of which are not crazy, that are money saving.
But if you just fire people randomly,

that does not save money. Okay.
Well, Ben Wittes, we've got more with you coming. We're bringing in a couple of your colleagues to do foreign policy to talk about Ukraine and a new

podcast you guys are working on. So you, Ben, stick around.
Everybody else stick around. We'll

be right back. All right, we are back.
Ben Wittes is still here. Unfortunately, he's not exactly been uplifting so far today.
And so we're hoping some new blood will help freshen things up. We've also got his colleagues, Anastasia Lopatna, a Ukrainian journalist, and she's the co-host of this new podcast, Escalation, which is a narrative series on the history of US-Ukrainian relations.
Tyler McBrien, managing editor of Lawfare, is the other co-host. What's up, y'all? Great to be here.
I don't know if we're going to add much levity to the program,

but I was just going to say, no good news from Ukraine.

Do you have any jokes? Do you have any Ukrainian jokes you want to share with us?

We're not in a joking mood the past few weeks.

It's all doom and gloom.

What about the nuclear codes? I thought there was a bit of Ukrainian gallows humor

that you shared with us earlier. Right, that was very funny.
Apparently there is a joke going around Ukrainian Twitter that after Zelensky's fiery press conference, which happened last Sunday, Trump might want to nuke us. So it's great that he fired everyone who may know where the launch codes are.
That's good. That's not exactly an uplifting humor.
It's all we It's all we got. All right.
Talk to us about the podcast. Why are you guys doing it? What was the rationale behind it? What are you trying to get out of it?

Well, we started this project about a year ago, and I asked Tyler and Nastya to host it. The idea was that the United States and Ukraine have a 30-year relationship of trying to deal with Russia and a history of misunderstandings and seeing the matter in sometimes dramatically and sometimes in subtly different ways.
And we thought, partly at the time, not because of the presence of Trump, but partly because Republicans were souring in Congress on support for Ukraine, and because the Biden administration and the Ukrainians were so at odds over how weapons should be used, that there was just a real value in telling the story of this relationship. And of course, that became much more urgent in the fall when the Trump administration made clear that they were, first of all, going to come to power again, but secondly, that their hatred of Ukraine had not abated.
Well, I was pretty disappointed that you had to start the podcast in 1991 rather than, I don't know, a little bit later, because it meant that you took a shot at Poppy Bush, the best president of my lifetime, who I guess, you know, maybe had a couple misses. We all have a couple misses and maybe didn't get things started off on the right foot.
So what happened in that first episode? In the first episode, it's titled Chicken Cave. And we're talking about how Ukraine regained its independence, officially declared independence from the Soviet Union in 1991.
And what was the American reaction to that? And the U.S. really wasn't kind of on the right side of history there, if you ask me, Ukrainian, because the U.S.
was very much shocked by the fall of the Soviet Union. And they were just trying to, you know, make this as clean as possible, avoid violence at all costs.
And apparently, the US government was sure that Ukrainian independence could only come as a result of some horrific violence. And so they basically came to Kiev, Bush came to Kiev, and said, you know, all of this independence jazz is cool, but we're actually basically going to beg Gorbachev in Moscow.
And, you know, he said that we are not here to pick sides, but everyone in Ukraine heard him picking a side. And so this speech then got titled Chicken Kiev.
It's named after a famous Ukrainian dish, but of course it's to throw a shaded bush. And yeah, everyone in Ukraine knows about this speech and Americans have no idea.
And this is kind of a theme in the podcast, that there are a lot of hard feelings that Ukrainians have towards America and Americans have no clue what we're talking about. So hopefully we're going to fix that with the podcast.
Got it. Tyler, as a non-Ukrainian, what of those hard feelings or other facts did you discover over the course of the project that stuck out to you? I'll just first say the Chicken Keeve speech illustrates this dynamic that we trace throughout the podcast, which is the US determining Ukraine policy essentially on Russia's terms.
And through the lens of Russia, we spoke to one Ukrainian diplomat who said that the US always looks at Ukraine through Russian glasses. And I think what we're trying to pull out is this has led to some pretty short-sighted decisions, both short-sighted looking forward and backward in terms of a misunderstanding of history.
I will say, though, this is not an entirely pile-on US foreign policy kind of podcast. Another, I think, interesting, contentious period that we look at is the Budapest memorandum in which essentially Ukraine gave up its nuclear weapons in exchange for assurances of security from the U.S.
but in Ukraine it got translated to guarantees and I will say I did play the role of a sort of naive American at some points but Nastia and I would have arguments between ourselves that almost mirrored U.S. and Ukraine relations.
Take the nuclear weapons. Ukraine maybe couldn't maintain them financially and geopolitically.
But, of course, looking back, Nastia would probably prefer that Ukraine had nuclear weapons right now. So it's an interesting dynamic.
Nastia, take us up to the present day. I just, it's impossible for me to get in the head of how Ukrainians are thinking about all of this right now.
And obviously, there can be people with different perspectives. It's not going to be a uniform response.
But I'm just wondering, when you talk to folks back home, et cetera, how the mood is as these kind of negotiations, so to speak, unfold. There is a lot of shock and outrage and anger just at all the absurdity that Trump is spewing, you know, talking about Zelensky being a dictator, just lying about Zelensky having 4% approval ratings, which is blatantly false.
Zelensky's ratings are at 63% this month, which is higher than Trump's, which is important. But the most interesting element of this reaction for me is Ukrainians have this remarkable talent at unity when there is this radical threat to us, which is why we survived the 72 hours that we're giving to us in 2022.
And it's now been years, they're fighting back. So what we've seen over the past few weeks is that the more Trump attacks Zelensky, the more Ukrainians rally around Zelensky, even though like a lot of people in the country really don't like him.
A lot of people think he's a bad president, want him out, etc. What are the complaints about him from people that don't like him?

That, you know, he's corrupt, that the guy who runs the presidential office,

Andrei Yermak, that he is this great cardinal who wasn't elected.

He's kind of like our mosque.

It's an imperfect analogy here, but he is an unelected official who runs the country for some reason.

Zelensky cares about looking good and doesn't make tough decisions when necessary, which impedes the war effort. So there's a lot there.
But once Trump started attacking him, the entire country started rallying around Zelensky with the message basically that like, hey, this is our guy. This is our president.
We have a right to criticize him. We have a right to accuse him of whatever, democratic backsliding.
You not have the right and you see journalists saying this who whose entire careers are built around criticizing the government you see even members of the political opposition in ukraine saying that you know poroshenko the guy who zielinski sanctioned uh just you know a few weeks ago he's one of our uh political um leaders opposition. He said that we are unifying around Zelensky and we think he's our legitimate president, our legitimate government.
So it's just a very interesting reaction to kind of protect our president from Trump. I want to go around the horn.
I mean, obviously this podcast is a look back, but there are lessons, of course, from the escalations throughout history.

I just want to hear what everybody thinks, what the echoes are going to be now and where things are going to go from here. Because obviously there's a ton of uncertainty, but surely there's some lessons from your guys' work on that.
So, Ben, why don't you go first and we'll just go around the horn. I mean, I think the entire history of U.S.-Ukrainian relations until a week ago can be summarized in the theme, two partners, each imperfect, and we've talked about the U.S.
failures, but we haven't talked about, which we also cover, the Ukrainian follies, which are non-trivial, and which we devote several episodes to, two parties who are both imperfect, both groping for a way to work together to manage a threat from Russia, and mostly doing so successfully with big failures. And then last week that changed and the United States switched sides and how decisively it switched sides is going to play out over the next year.
But we fundamentally changed the nature of the relationship to one that is imperialistic, extractive, and cooperative with the totalitarian regime that we had been previously trying to help Ukraine keep at bay. And I think the tale of that decision is going to be very long.
It's going to be very tragic. And I don't think we should understate it.
And so I think what happened in this podcast is we told the story. We've done six plus episodes that are all leading up to this decision.
And there is a final chapter of it that is yet to be written. And that is whether Trump will be meaningfully rebuffed in this effort to rewrite the relationship from one of partners to adversaries, or whether he will accomplish that.
And I think it's one of the big things, other than dismantling the US federal government government that he has tried to effectuate in his first month in office.

Just a few casual things, switching sides beyond the baddies and trying to dismantle our republic. Other than that, some minor actions the first month.
Tyler, do you see it that stark? I do. To pick up on something Ben was saying, the fact that Trump has seemingly done a 180 for U.S.
foreign policy, whether that'll stick or not, I think it's safe to say that there is a lot of ambiguity. And in looking back in US Ukraine relations, the US has often trafficked in this type of strategic ambiguity, only to Ukraine's detriment.
It's a situation in which Russia can exploit easily. Just very briefly, one of our episodes touches on a period called the Bucharest Summit, which was in 2008, which essentially gave Ukraine these vague promises of joining NATO and enjoying all the security benefits of that, but with no real map or commitment to get them there.
But it was just enough to anger Russia and spark further aggression from them. So it's

this kind of ambiguity, I think, that the US is continuing to our own and to Ukraine's detriment. Yeah.
Nassia, what do you think? So like both the gentlemen said, I mean, there is some ambiguity here. But if Trump continues to move down the path that they went down, like yesterday at the UN, siding with Belarus and Russia, et cetera, against Ukraine and Europe.
Is there the resolve or the desire within Ukraine and within the rest of Europe to go at it without us? Like, how do you see that playing out? I mean, it's terrifying to imagine, right? Because the vast majority of Ukraine's military aid came from the U.S. And we see clearly that Europe just does not have the production capacity and seems to have wasted three years not getting it out there.
And they've done a lot. They've done equally as much as the U.S.
in terms of monetary support. But still, it's not the same.
I think Ukrainians have had some dark moments of history with Europe as well. And again, that's something went back in one of the episodes.
The Europeans were one of the reasons why the Bucharest summit that Tyler mentioned kind of collapsed and was the worst of all worlds, as we say. And they were also there rockering peace, quote unquote, with Russia after 2014 when Russia first invaded Ukraine.

And look how that turns out.

So we don't have a lot of trust towards the Europeans either.

And so I think a lot of Ukrainians are feeling like we're being abandoned, like we're being left alone.

And Macron is crambling to figure out some coalition in Europe, calling these summits.

Nothing concrete is happening out of them.

Meanwhile, Ukrainians are like guys who've been at it for three years. Like that should have been enough time for you to figure your stuff out.
And it's just so annoying that like, ultimately, ultimately, it's always going to be us being the price. Somebody's children, somebody's parents dying.
It's unfortunately as tragic and as sad as Ben and Tyler kind of put it. All right.
Well, I hate to leave people with that,

but such is the world that we're in.

Nassia's sub-stack is called Yours Ukrainian.

You can get the podcast at Lawfare.

So go and check that out.

Ben, Nassia, Tyler,

thanks so much for being on the Bullard Podcast.

Everybody else will be back here tomorrow for another edition.

See you all then.

Peace. I think I'm dry and lipstick and I won't do All that's left of my pride Cause lost will rely When you attack, you lose And you say that you trust in me And I say that I don't die dead supreme I'm out of my time, I'm lost in the ground My lips touch and round to it Only what's left of my pride The false of the mind when you attack you I'm running out of my time

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with audio engineering and editing by Jason Brown.