Lawfare Daily: Rubio, Ratcliffe, and Bondi Confirmation Hearings Dispatch

[Intro]

Tyler McBrien: The concern about the lack of experience wasn't there this time. I think having been director of national intelligence for a year, helped dispel that. But there, there were definitely lingering, if not acute, worries about politicization. And those were the, the biggest concerns among the Democrats.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, Lawfare editor-in-chief, with managing editor Tyler McBrien and senior editors Anna Bower and Scott Anderson.

Anna Bower: And the most testy and combative exchange of the whole hearing did, did come with Adam Schiff who, I think that exchange was particularly revealing about her views about this, these questions around retribution and whether she'd be willing to investigate people like Jack Smith.

Benjamin Wittes: In a live recording January 15th, we talked about the nomination hearings of Marco Rubio to be secretary of state, John Ratcliffe to be CIA director, and Pam Bondi to be attorney general. We discussed how each Senate committee handled its respective hearing on Wednesday.

[Main podcast]

Scott, we are going to start with you because the secretary of state outranks—in the line of succession, if the president resigns, he's got to notify the secretary of state.

Scott Anderson: First in the line of succession among Cabinet officials.

Benjamin Wittes: Exactly. So we're going to start, we're going to do that, and then we're going to go down the list. What happened at Marco Rubio's hearing today?

Scott Anderson: So today's hearing, I think you, if you were to think of what the platonic ideal of what a confirmation hearing would be, this actually may have gotten shockingly close to it in a lot of ways.

It was an incredibly amicable proceeding. There's of course, Senator Rubio's home committee that he spent many years on, I think 12 years at least, I think, on the Senate Foreign Relations Committee—maybe I think longer than that. He had a number of really positive exchanges, both with Democrats and Republicans.

Actually, a number of Democrats went out of their way to say very positive things about him, sharing personal anecdotes, complimenting him on his grasp of various regional politics, noting that despite policy differences, they thought he had a great mind of foreign policy and understanding of foreign policy and policy issues.

And I'll say it was actually pretty notable. Rubio was actually fairly respectful back. He actually called out, a few Biden administration officials and nominees, for things that they had done. Tom Perriello, who's the special envoy for Sudan, got a kind of nice shout out at one point. Secretary Blinken got a shout out for certain issues.

He kind of worked—there were other criticisms kind of worked in—kind of broad, broad criticisms that kind of toed a party line about the Biden administration having shown weakness and essentially invited a variety of international incidents. That was kind of the, the main attack line, but even when invited to make much more critical statements by other members of the committee—several Republican senators gave pretty lengthy remarks, committed to criticizing different aspects of the Biden administration's foreign policy and national security policy—Rubio really didn't take them up on it too much.

His criticism where he offered them were more targeted. Rarely weren't quite as kind of vitriolic as some of the opening comments were. Part of that no doubt is strategic. I'm sure he wants to get democratic votes and thinks he can get democratic votes.

But it also, I think, maybe reflects a little bit the grasp he has of some of the complications of these issues and the fact that some, in some areas, he is going to be building on things the Biden administration has done and is going to want to keep bipartisan consensus around parts of them, I suspect.

Benjamin Wittes: All right, what did he articulate as his ambitions, what's his goal, and where were, to the extent there were any points of friction, where did those arise, if, if any, and Tyler and Anna, jump in with questions as you have them about Mr. Rubio.

Scott Anderson: Sure, let me. I'll start by kind of giving his overall image and I'll pull out a couple of policy points that I think jumped out at me that were indicative, some substantive and a few that kind of on like a meta policy level.

There's one particular exchange I thought was really interesting.  I want to drill down on regarding Mexico and FTO status, an exchange with Senator McCormick. Before we get that though, I mean, Rubio really approached this hearing—with his opening remarks in particular, and he returned them over and over again—with a theme that really tried to square America First foreign policy agenda with a more conventional conservative, but a conservative, more international interventionist, foreign policy.

The way he did this is essentially by saying, look, Americans play an important role in the world. We set up a global order that's done many good things, but this global order is no longer doing what we need it to do,  or is being taken advantage of by primarily China, to some extent also Russia, and certain other major powers. We need to put American interests first because only by pursuing our own national interests can we put ourself in a strong enough position, to try and secure the other sort of global goods that we agree are also important.

Is that a formulation that really works when put under a lot of stress? I'm not sure it really is, but it's a very convenient line to be articulating when you're trying to both justify the policies of a candidate that has a very national interest focused viewpoint, very unabashedly national interest viewpoint, but you're going to have to engage with foreign partners too, you know.

You're going to persuade people to go along with this, not just Democrats, but foreign leaders, foreign audiences, foreign nationals around the world. And Rubio, I think, you know, as best as can be expected, hewed that line. Tried to say, here's why, when we say America First, here's what it really means. He was, I think, putting a big emphasis on international alliances and the importance of those relationships, while at the same time expressing skepticism towards aspects of the international system.

He essentially made the point when pressed at a couple of different points that we're going to keep engaging with the international system where it serves US interests, and in places where it doesn't, then we need to reconsider. You know, we—he essentially, I think his, his takeaway point is that we shouldn't be overly committed to the existing international system where it's no longer serving our interests.

That's not that big a departure from other Republican officials, certainly from the Trump administration's last time in office. I think it's fairly consistent with that, kind of a rationalization of that. But he, at the same time, he underscored that there are benefits to this, that we need to work with foreign partners.

We need to recognize the importance of alliances, an important moment happened fairly early on when Senator Shaheen, who's now the ranking democrat on the committee, came out and asked him very pointedly about the Kaine-Rubio provision, as she described it, which is the provision that would. bar the withdrawal from NATO that I've talked about the podcast a little bit and I've written a good deal about.

And he made the point saying the law is what it is. I agree with it currently–- maybe my views will change when I'm in the executive branch—but he underscored the point that NATO is an important alliance and we shouldn't be walking away from it that easily,  which is a little bit in tension with certain things President Trump has said at times.

He also made the point–which is much more consistent with Trump's general line–that NATO allies need to be consistent in upping their defense spending and contributing to their own defense. And that's actually something Senator Shaheen said she thought Democrats on the committee generally agreed with and had taken steps on their own.

All around there was a lot of very conciliatory views. There's a lot of agreement. Part that where you saw points of tension, there was a little bit maybe around aspects of Israel and Middle East policy, where you saw a few people really push him to do things, to commit, to rebuke certain aspects of the Biden administration's policies, particularly around sanctioning of certain settlers in the West Bank, rolling back certain restrictions about assistance to the Israelis.

Some of which were, I think, exaggerated a little bit by some of the committee members. But it wasn't really much of an effort of Democrats to push back on it. The harshest pushback you really got, I would say, was probably from Senator Murphy, who really went into Senator Rubio, underscoring, talking about President Trump's business deals overseas. Or I should say the Trump Organization's business deals, particularly in the Middle East, and pushed Rubio to say, is this a problem for you as Secretary of State that the President keeps doing this?

Would you encourage him to stop doing major deals with the Middle East? Rubio responded, I think in a way that most people probably did not find super persuasive. Well, Mr. Trump, President Trump is not involved in those decisions. His family runs the business and now that they're the ones making that decision, they have a right to do that.

Of course, it doesn't account for the fact that Trump knows what they're doing and gets business advantages from it.

Benjamin Wittes: And signs checks in his office in the White House.

Scott Anderson: Evidently, at least certainly he did it last time around. As Anna and Tyler will recall. Exactly. So, you know, there were harder lines that Democrats could have gone down.

Instead they really seemed to focus on a whole, getting his commitment and outlining areas of agreement and a whole array of issues. And Rubio really engaged on that. Like he really did outline a number of points where he saw areas of agreement with Democrats and Republicans, with prior administrations,  and really emphasized the need to build out a number of issues.

Big focus on Latin America, perhaps unsurprisingly given that's Rubio's kind of region of focus and was during his time at SFRC. Lots to talk about Latin America, lots to talk about engaging more in Africa, particularly as a counterweight to Chinese intervention and Chinese involvement there. There's lots more I'm happy to dig into about specific policy stuff and a few things to talk about more, but hopefully that gives a sense at least where, of the broad tenor of the conversation.

Tyler McBrien: Yeah, I had a quick question, Scott. You began to get at this with the, asking Rubio to commit to rebukes of certain things with Israel and Gaza, but you mentioned that there were a few moments where Biden administration officials got shout outs essentially from Republicans, Blinken, and Perriello being two, I'm curious to the other—if there were any other ways that the Republican members of the committee used the platform to, to take shots at the Biden administration.

I asked because this happened a few times in the Ratcliffe hearing where they would say a few—sort of Tom Cotton especially—said the CIA has lost its way. It's really, it's not great at collecting intelligence anymore. And then was always careful to time bound the criticism over the past four years. So it was always,  that was, you know, the first day was four years ago when they stopped, when things went downhill.

But I'm curious if there was any similar politicking going on.

Scott Anderson: There, there absolutely was. We saw a number of Republican Senators, members of the committee—Senator Cruz being the last one, a few senators earlier on—really commit the vast majority of their remarks to articulating here's all the things bad the Biden administration did.

And it basically boiled down to accusations that they have abandoned American allies. It's not clear exactly who they're talking about. I think it's mostly Israel that they're talking about there, but a little unclear. And it's essentially shown weakness to the world. And then that, essentially, relinquished deterrence and that invited Russia's invasion of Ukraine, invited Hamas's attack on Israel and October 7th attacks, invited a lot of these other bad events that have happened in the last few years.

Is that a fair assessment of these things? Who knows? I, I don't tend to think so. I think that tends to be a very, one-sided take on exactly what's causing these things—and a very convenient one when you're in the party that was in the opposition and now ran against the people who were leading the country during those times.

But that's not unexpected. I think we could expect a lot of remarks along those lines. And they weren't that interesting, and Rubio bought into them, but only to like a much more limited conciliatory view when pushed on this idea of weakness. He said essentially, well, I do think we have lost deterrence, and we need to restore deterrence. Restoring deterrence being this pet phrase that comes up a lot in international relations I think is not particularly useful, but nonetheless is a kind of common talking point. But he didn't spend a lot of time dwelling on all these condemnations. Instead, he had a more positive vision of kind of looking forward and saying, here's things we need to do moving forward. I want to adjust things.

And he actually pushed back on Republican proposals in an interesting way, I thought was really informative. Early on there's a Q and A between Senator McCormick–who's the new senator from Pennsylvania–and Rubio where McCormick asked him to commit to designating cartels across the border in Mexico as foreign terrorist organizations. And Rubio actually gave a very sophisticated response that I may be reading too much into, but I think is worth looking at, where he said essentially, well look, they undoubtedly act terroristically—his kind of phrase that he used there, terroristic organizations, not a real word, but that's okay—they certainly do things that are problematic, but that's not necessarily a perfect tool. We need to find ways to label them and call them what they are, but he did not commit to designating the FTOs themselves.

Benjamin Wittes: Good answer.

Scott Anderson: That actually makes a lot of sense from a policy perspective because as he noted in his remarks, these cartels actually control big swaths of territory along the U.S.-Mexico border.

So if you were to designate them, that could potentially make all sorts of actors, —including a lot of Americans who engage in business in those areas and who necessarily have to interact with these groups, can't really avoid it—very easily subject to prosecution for material, material support for terrorism. It's a repeat problem with the FTO regime that we're now seeing very real in Syria, as I wrote on a few weeks ago for Lawfare, as we're seeing in other domains.

And the fact that I think Rubio, that, to me at least, I read his comments as trying to navigate, not shut down his Republican ally on the committee, but say, hey, just so, just so you know, maybe this, this, this, FTO regime isn't the perfect tool.

And he actually said, you know, maybe we need to develop a new tool, or maybe we'll find some other way of, you know, making clear they are acting terrorist in a terroristic fashion, to use his word again, but not rely on the FTO regime. And Senator Cornyn kind of came in later asking a similar question where he reinforced also concerns about some of the implications of deploying the FTO regime.

So there's obviously a conversation happening in the Republican caucus around this, and Rubio seems to have–at least what I read to be maybe reading into his comments a little bit–a fairly nuanced understanding of what that designation means. That's good. That's the sort of technical detail you need to have if you're really going to tackle these things effectively.

Benjamin Wittes: Right. And it's also a really good illustration of why going from a long term service on SFRC to being the secretary of state is a very natural elevation or change of job. You don't, don't have situations like, for example, the one that we saw with, which we'll get to, with Pam Bondi, where she was asked about FISA 702 and clearly did not know the regime well enough to have a conversation about it.

And it sounds like Rubio is, you know, really conversant in all of the issues that you would want a Secretary of State to be conversant in. So, Scott, all of this sounds great. It sounds like, you know, sort of Rex Tillerson/Mike Pompeo without the Rex Tillerson mania for destroying this institution of the State Department, and without the kind of weird meanness and, you know, partisan nastiness of a Mike Pompeo, and all of that makes me think, this guy's got about three weeks in office before Trump chews his leg off.

And so I'm curious, if I were one of the Democrats on the committee, I would kind of want to bring out that, hey, you sound, you sound like a breath of fresh air and like a really normal guy, what, what's a guy like you doing in a place like this? Did Democrats just count their blessings or did they seem to try to bring out the conflict between a very normal foreign policy conservative like Rubio and the person who has appointed him?

Scott Anderson: To be completely honest, the only real exchange that I thought really sharply brought out the tensions between what Rubio was saying and what, you know, President-elect Trump has put forward was Senator Murphy's line of questioning regarding foreign business deals. Everything else is really focused on a more constructive fashion.

Part of that might be the kind of civility, the fact that these people are dealing with a former long term colleague, who I think by most accounts is like relatively well respected among, in the Senate and among senators. You know, he's not a Matt Gaetz, he's a senator that people take seriously. And again, several Democrats made very personal anecdotes about how things he had done that were kind to them.

Tammy Duckworth said something about how Senator Rubio helped her get special permission to bring her child into the Senate when she was a young Senator for reasons related to her needing a wheelchair if she couldn't use a normal entrance. I didn't 100% understand it, but it was obviously a very heartfelt anecdote.

So you know, if I, if there was a strategic logic, if Democrats got together, and I'm assuming they did, and decided, well, what are we going to do here? I think the logic may have been let's try and bolster Rubio and actually make him a stronger figure. Precisely that concern is that the worry is going to come and he's not going to have the sharp elbows to be able to, to fight with other people in the administration because he's not going to have that naturally pugilistic sort of instinct.

What I would say on that, and that's a possibility, it's definitely a real thing. I know Politico wrote a column kind of making this case in Politico in the last few weeks basically saying, he's not likely to hang around that long. And that might be right. A hundred percent. Nahal is very good at this stuff and has a good read on this.

What I would say though is, A) Rubio is also a very savvy political actor and he can have very sharp elbows when he wants to. He knows when to be civil and when to be diplomatic, when, and what the task is. But when given a, you know, partisan political task, he can do it. He just doesn't do it where it's not necessary to do it.

And that's a good calibrated task. But if he needs to bring out the claws, he certainly has in the past. I don't think they've gone away. B) the second factor is, you know, his role in being brought into the cabinet early, as one of the first appointees, and clearly one that had been kind of pre negotiated before the election, frankly, given how quickly it happened, I suspect, I suspect that he is the compromise. He's the one pulling in more conventional conservatives into this coalition that got Trump reelected and has supported him and helped to normalize him again. And that means he does have support from some corners.

Now, maybe those corners are going to become unimportant now that the election has happened and they're going to become dissatisfied and marginalized. That's entirely possible. But I says, my suspicion is that the Democrats in this committee–because they think Rubio is reasonably well qualified and going to be easier to work with–the angle seems to be, well, let's make clear we have a lot of spaces we can work with you, Senator Rubio, and we're willing to work with you.

And part of your credentials, part of your appeal internally is that you're gonna be somebody who can build alliances, get votes, and get things done. Particularly maybe when you need, Democratic support in the Senate, around foreign relations stuff, that he's gonna be a focus and, and a way to build the Senate bipartisan support that the Trump administration ultimately is going to need. Cause in the end, it has a very narrow control of both chambers of Congress and it can't get around that.

That's a very rational appeal. And maybe that's not what these judgments and decisions are gonna be made on in the end, but insofar as you're dealing, you hope you're dealing with rational actors in the policy process, it's in my mind kind of a sensible tack to take.

Benjamin Wittes: All right. Let's turn to Mr. Ratcliffe, who appeared, Tyler, before the Senate Intelligence Committee, I understand, partially in open session and partially in closed session. Were you there for the closed session?

Tyler McBrien: I snuck in, I got through—no, I was not there for the closed session, only,  the, the first half, which was the opening session, and it was a bit frustrating, they kept teasing things that they were going to address in the closed session, definitely the juicier bits happened behind closed doors. That's what they do in the intel committee.

Benjamin Wittes: All right, so tell us about—so this was basically a morning hearing—tell us about Mr. John Ratcliffe, how did he do, and how was he received by the committee?

Tyler McBrien: If I were John Ratcliffe, I would walk away feeling really good about it. It was a pretty smooth hearing, very few tense moments, if any, very few difficult questions.

I can only really think of two moments pertaining to declassified intelligence from 2020 during his one year tenure as director of national intelligence, but other than that it was smooth sailing. I would be shocked if he faced any resistance getting confirmed. So I think similar to the Rubio hearing it was mostly an opportunity to learn about his priorities, learn about his approach to – his planned approach, if confirmed—to running the agency, which I'm sure we'll get into, but really, a short and I want to say boring, uneventful hearing.

Benjamin Wittes: And what were the two areas of friction that you identified?

Tyler McBrien: First, I'll just say, as probably most people listening know, this was not his first rodeo in terms of a confirmation hearing. He was nominated by Trump in 2019 to be the director of national intelligence and then ended up withdrawing that nomination over concerns that he would politicize intelligence and that he had a lack of experience in national security.

There were also reports that he had embellished parts of his CV relating to prosecuting terrorism crimes, which he denies. The concern about the lack of experience wasn't there this time. I think having been director of national intelligence for a year helped dispel that.

But there, there were definitely lingering–if not acute–worries about politicization. And those were the, the biggest concerns among the Democrats. He's known for being a Trump loyalist. He echoes Trump's concerns on China and a lot of other similar policy positions. Interestingly, I think foreseeing this,  one senator, I believe it was Senator King, kind of tried to paint this perceived weakness and fear into a strength, sort of saying that the closeness to Trump is an asset to Trump's confidence in Ratcliffe, Ratcliffe could use to restore Trump's confidence in the intelligence community, which I think was quite a charitable reading of that concern.

Benjamin Wittes: Although I gotta say, I don't – the idea that the CIA director and the president are close does not trouble me in the way that, for example, a close FBI director president relationship bothers me. You know, Bill Casey was very close to Ronald Reagan. Of course, you know, that helped result in all kinds of things, but it's not an unheard of arrangement for a president to have a CIA director who's one of his foreign policy confidants.

That said, one of the big no-nos is the politicization of intelligence, and Ratcliffe did declassify stuff in 2020 that was related to the Russia investigation for overtly political reasons. I assume he was at least asked about that?

Tyler McBrien: Correct. The most direct line of questioning about that—the political motivations to declassify what essentially another senator called Russian disinformation was from John Ossoff—he asked Ratcliffe whether he recalled that the very same day that he declassified that intelligence was the same day of a presidential debate. Ratcliffe said he didn't recall. John Ossoff reiterated he wanted to get on the record that Ratcliffe did not recall that it was the same day as the presidential debate—obviously this subtext being that, you know, released to sway the debate in some way.

And then, I believe it was Senator Bennett who brought it up again, but both of them, both of the, the two Democratic senators, backed off a bit. They, they raised the temperature a little bit and then turned it back down by saying, Jon Ossoff said, I don't bring this up to re-litigate ancient history–meaning this is behind us. He said, I'm just bringing it up to dispel fears of politicization and using the agency for partisan reasons. You get, you got the sense that they're, they're keeping their powder dry for other more controversial nominees.

Benjamin Wittes: Yeah, so, I'm curious what Ratcliffe presented as his priorities. He's somebody who actually, you know, has some experience in the intelligence community at this point. It's not Rubio-depth experience, but it's not trivial either. He was DNI for 11 months. What does he say he wants to do?

Tyler McBrien: I will also say that he did demonstrate fluency in Section 702, which was heartening.

Benjamin Wittes: Yes, I'm actually going to ask you about that. And just to be clear, I did not mean to be critic, sound like I was criticizing Pam Bondi for not being conversant in 702. No state attorney general is conversant in Section 702. It's just not part of their practice area. There's no reason for her to be. My point is that it shows the relevance of Rubio's SFRC service over time, that he's conversant in all of the State Department's major business areas in a way that, you know, if you don't have that kind of direct match, you may not be.

What does Ratcliffe want to do?

Tyler McBrien: So he laid out his vision, which tracked almost directly to the challenges and the criticisms that Tom Cotton laid out in his opening statement, essentially.

The biggest theme that stuck out to me was this idea that the CIA, especially in the last four years, has lost its way. They need to return to their roots of human intelligence. Gathering of stealing adversary secrets, as Tom Cotton put it. So there's this, really this emphasis on returning a return to form for the CIA. This emphasis on espionage and covert intelligence collection.

Benjamin Wittes: As opposed to what? What has the CIA been allegedly doing for the last four years?

Tyler McBrien: They've, well, they've – it's like, it's what they've not been doing. They've missed, according to them, predicting or preventing major geopolitical events from Afghanistan to the fall of the Assad regime in Syria to New Orleans at home to any number of things. Even, even, they brought in critiques of Russia and Ukraine saying that the CIA didn't predict well the timing of, of how quickly Russia would, would overtake Kiev, for example,

So this, this idea that there was to return – I mean, Ratcliffe even quoted,  the, the leader of the OSS, which is the CIA's predecessor organization, that they're looking for the ideal recruit is a PhD who can win in a bar fight—this, this same also masculine energy that you got from the Hegseth hearing.

So I think the critique was really what they're not doing. And they, there was, there was this idea that you'd be better off getting briefed from the State Department or reading the newspaper than, than the CIA, because they've missed so many things, which didn't seem so fair to me to say, but.

Benjamin Wittes: But it's, but it's also a super old critique. I mean, it, you can, this is Daniel Patrick Moynihan's critique of the failure to anticipate the fall of the Soviet Union, which he anticipated by, you know, reading the newspaper and reading open source data. And so there's, I mean, this is an old, old debate. I just wasn't aware that it had been especially accentuated in CIA performance over the last four years.

Tyler McBrien: And then the other two areas that he put on the table—the second being talent—he, he played kind of a tricky game here. He, he was, you know, careful not to critique the men and women who work at the CIA, while also wanting it to be more—he, he says he wants to bring back meritocracy to reward, you know, high performance and vice versa. One time he did use the word something like bureaucratically imposed social justice, something to characterize how Biden's CIA is currently being run.

And then the third big priority for him was technology, which he kept saying as a tool and a target, which I took to mean a catch-all bucket for technological competition with China. And I guess in, in terms of his analysis of the biggest national security threats facing the United States, China is far and away the biggest threat according to him. This will come as no surprise to anyone. Russia is a distant second in his view. And so technology also had to do with developing more tools for cyber deterrence and catching up to China's quantum capabilities and that kind of thing.

Benjamin Wittes: And did you have the impression that he was articulating China as his leading concern because that's what he really believes? Which is a perfectly defensible view, by the way. Or did you have the sense that he was kind of creating space for Trump's affection for, for Putin.

Tyler McBrien: You know, I thought there would be more of the latter in the form of deflating the Russian threat and inflating the Chinese threat.

I didn't get a strong sense of that. He kept the focus very much on China with one exception that comes to mind, which is in his ranking, he, he, he laid out his reasoning why China's first and Russia's a distant second. And he said, the United States is the largest economy in the world, China is the second largest, and it's gaining on us, although he didn't say that, and Russia's economy is about the size of my home state of Texas. And just that fact alone makes him less worried.

And a senator, I can't remember who it was, said, you're the first Texan I've ever met to belittle Texas, which I thought wasn't actually belittling, but, so it was the, it was the economic argument. But other than that, he really just took China on its own terms as a threat without comparing it to Russia.

Benjamin Wittes: Do you guys have any other questions for Tyler? I have one more. I'm going to use 702 to bridge the conversation, but Scott, go first.

Scott Anderson: Yeah, so I thought your, your note about the tying to DEI  comments that came through was really interesting. And I'd be curious, that's something I should have mentioned.

That was a theme in a lot of the questioning from Republican members of the committee of Senator Rubio. He did not really bite at that. He actually was quite friendly to diplomatic staff, which I think is a good sign as a kind of a very non-Tillerson sort of tack. He actually seemed to be relatively inclined toward, towards the State Department in saying we want to have a functional one. I'd be curious how much Ratliffe bought in versus the committee members bought into that.

But another angle that's kind of related that is a big theme of American national security policy the last 20 years. I'd be a little surprised as falling from the scene, is this idea of analytical independence of the CIA needing to have the capacity to reach conclusions without political bias. And that's always the concern about when you have a CIA director or other senior intelligence official who does have a close relationship with the president. Do we see that brought up by anyone about assurances or mechanisms for ensuring that independence?

Tyler McBrien: Yes, but I would say that more of, there was more of this sense from Ratcliffe and especially Republican members of the committee that it's not so much that we need to emphasize independence as a way to combat this criticism of politicization.

It was more so the message was the Biden White House is actually the one doing like politicizing intelligence and they flipped the script on this criticism of Ratcliffe saying, isn't it funny how all of the intelligence assessments coming out of the CIA and, and the IC, you know, in general, aligned with Biden's priorities to leave Afghanistan, to bolster Ukraine—like isn't that a coincidence, which is the same criticism that has been lodged at Radcliffe in the past.

So it was almost more of a judo move than standing by your principles of analytical independence. I brought up the quote about the social justice agenda situation. It was to a question I believe from Senator Collins about the intelligence community's recent significant misjudgments. I listed them earlier. And Ratcliffe turned it into this strange answer about the current CIA's quote, politically motivated, bureaucratically imposed social justice agenda, which he didn't really elaborate on that and that no other senators on the committee asked him to, but that was the full phrase used, which, you know, made, I think, a few heads turn, including my own.

Benjamin Wittes: All right, let's talk about 702. So we had an interesting exchange, and Trump himself has kind of waffled about what he wants to do about 702 and FISA more generally. The attorney general nominee, which we'll talk about in a moment, was asked about it. I assume it came up with Ratcliffe and I assume he actually knows what he thinks about it.

Tyler McBrien: It came up a few times, with a few different senators and not only does he know about it, he was asked to explain it to the American people,  in a way. And the purpose being to show its value to intelligence collection and national security, but also to dispel fears of its abuse and misuse. And I would say he came out pretty strongly.

Benjamin Wittes: So good for whoever asked him to do it. And if he did it well, good for him. I, you know, it's something that people actually don't try to do enough—explain 702 to the public and what it does do and what it doesn't do. So how do you, how did he do an explanation of it? And was he full throated as I would expect he would be in support of it?

Tyler McBrien: Yeah, he had a, yeah, I thought he had a, an easy to understand. simple explanation, description of it. Which is he emphasized it's the collection, it's foreign intelligence collection of foreign persons outside of the United States. He characterized a lot of the criticisms of it as incidental. If Americans are speaking to someone outside of the United States who is being collected on, those are, those are incidental and it's not the purpose of the program.

And he did come out fairly fullthroatedly in support of continuing 702. There was even an exchange later on about this suggested reform, I believe, to obtain a warrant for 702 collection. And it was a leading question, but Ratcliffe came out with the assessment that it's not practical to ask for a warrant because you actually don't have the information to establish probable cause and that it's also that it's, it's too time consuming to do so because you need to be more urgently responding to the threat that you're —

Benjamin Wittes: And do you remember who asked that question?

Tyler McBrien: I think it was, yep, it was Cornyn.

Benjamin Wittes: Gotcha. All right. So let's turn for the last third to Pam Bondi, who is the one who had a contentious hearing. Anna, I have so many thoughts about this. Give us the overview.

Anna Bower: Yeah. So it was a kind of surprisingly contentious hearing because it was contentious without any real end, in the sense that it was widely expected going into this hearing that Pam Bondi is likely to be confirmed as attorney general. In fact, during the hearing, one of the Democratic members of the Senate Judiciary Committee said himself, you know, Ms. Bondi, I fully expect that you will be confirmed, I can count votes.

But I think that the reason that it was contentious is that obviously one of the big questions about Pam Bondi going into this has been, you know, is she the type of person who can stand up to Trump? And so this was, I think, a test for Pam Bondi in terms of Democratic senators in particular trying to get her on record saying that she believed in the independence of the Department of Justice, and really trying to get her to answer questions that would give them some indication of whether she is a Democrat, a loyalist, or if she is someone who would be willing to depart from Trump and from his views in places that it matters, not just on the independence of the Department of Justice, but in on issues related to, for example, election denialism. And overall, she really tried to walk a fine line on those issues.

So the major one, of course, was this question of independence and retribution. Trump, of course, has hinted that he potentially would use the Justice Department to seek retribution against the investigators, either people on the January 6th Committee or prosecutors who were a part of the cases against him.

And Pam Bondi, in response to some of these questions about this – so I'll give you a few examples. They asked about the so-called enemies list that Kash Patel has made reference to, the potential FBI director. And then other statements that Trump has made about seeking retribution. They asked about this question of will there be a list of people to go after? Will you start with a name and then look for a crime? Those kinds of questions.

Bondi tried to dodge those questions by speaking more broadly about the fact that it would be the Department of Justice's decision to prosecute cases and that you look at the law and follow the facts, and those kinds of more broad answers as opposed to really answering the question.

However, she did say there will be no enemies list in the Department of Justice. That was pretty much the most spot-on thing that she said. She said you–

Benjamin Wittes: Don't start with a name, you start with a crime.

Anna Bower: Right. She said, you, you start with a crime and that you, you know, like I said, look at the law and apply the law to the facts.

And you know, again, this happened with other questions that were very specific about whether she would investigate the investigators, including people like Jack Smith, Liz Cheney, and Judiciary Committee member, Adam Schiff, who was, you know, there and, and asked the question. Some of these questions with whom she had a testy exchange

Benjamin Wittes: Yes.

Anna Bower: Which we'll get to, but she, she repeatedly, again and again, claimed that she would not answer hypotheticals and that she would have to look at the file. That you know, she had not looked at the facts, that kind of thing.

And the most testy and combative exchange of the whole hearing did come with Adam Schiff, who – I think that exchange was particularly revealing about her views about this these questions around retribution and whether she'd be willing to investigate people like Jack Smith.

At one point Schiff pressed her to say whether there was any factual basis to investigate Smith after avoiding it

She finally then responded, Senator, what I'm hearing on the news is horrible, but do I know if he committed a crime? I have not looked at it, you know again quite revealing that moment, uh in which she says something to the effect of that she from what she has heard in the in the public reporting on it, she believes that there's some kind of horribleness or some kind of misconduct that maybe has occurred in her view.

Similarly, when she was pressed on some of these election denialism questions, which was another big theme of the hearing, she declined to say that Biden's win in 2020 was legitimate. She instead would repeatedly say, President Biden is the president of the United States. He was duly sworn in. He is the president, which is, as one of the senators pointed out, very different from saying that –  saying that Biden was sworn in and is now the president of the United States is quite distinct from being able to say, Biden won the 2020 election, and that there was no widespread fraud.

Again, she repeatedly tried to skirt saying that exactly.  and she even suggested that she saw things. She was very kind of vague about it.

Benjamin Wittes: Yeah, none of the Democrats let her finish that sentence, but she really wanted to say what she saw within Pennsylvania.

Anna Bower: Yeah, she said, I saw many things in Pennsylvania, and, and we still don't quite know what she wanted to say that she saw in Pennsylvania, but, but she did not say that she was aware of evidence of widespread fraud in the election writ, writ large. And again, the fact that she could not upfront of the election say, Biden won the 2020 election and I have not seen evidence of widespread fraud, I think is an example of getting more information about what she might be willing to do when it comes to some of these loyalty tests that she will face once Trump is inaugurated

And, you know, Adam Schiff was certain to make the point to her that that test will come—Jeff Sessions faced it, Bill Bar faced it and, and you will too, Schiff said. And so that's kind of the two main themes I think of the hearing then. But there are a lot of specific policy questions that we can chat about as well Including the FISA thing that I'm interested to get your thoughts on.

Benjamin Wittes: Yeah, so let me just – before we turn to specific policy things, let me argue the other side of the Pam Bondi hearing. So if I were a senator, I would not vote to confirm her for all the reasons that you just described, right? If you can't say Trump lost the 2020 election, then you're actually failing the Bill Barr test, right? If you're standing by Kash Patel. Right? Like you're, you're not putting enough distance between yourself and some really dangerous stuff. And there's a million examples like that.

And yet there was something – maybe just in comparison to Pete Hegseth – there was something quite normal about this hearing. So first of all, she had done courtesy calls on all the Democratic senators. We talked yesterday about how Hegseth had not met with any of the Democrats; she met with all of them who would meet with her.

She was conversant with their, in their policy concerns and seemed genuinely interested in doing bipartisan work where possible, which they clearly noticed as well. There was a lot of actual policy discussion, including with Democrats, on you know, from Amy Klobuchar to Senator Blumenthal, she's genuinely qualified in a traditional sense.

And she did say, you know, for somebody who is up there for Donald Trump, that what she aspires to for the Justice Department is kind of normalcy, right? She's not saying we're going to go after all of his enemies. She's not saying she's you know, pretending rather that he didn't say those things.

And so I sort of thought this hearing was like two sides of a mirror. There's like the, the normie mirror where Republicans are pretending that all the weaponization has already happened and, you know, it's not a hypothetical. It's what the Biden administration did. And she's saying she's going to restore integrity to the Justice Department and the FBI. That's one side.

And the other side is this very normal hearing. That's kind of like the Rubio hearing or the Radcliffe hearing where, yeah, there's, you know, and nothing like the Hegseth hearing, right? She's not up there saying, we're going to bring the warrior culture back to DOJ, right? There, there was nothing crazy about this hearing compared to yesterday.

Anna Bower: Yeah. She wasn't talking about how DEI has ruined it.

Benjamin Wittes: In fact, that subject really didn't come up. I mean, there were, there were a few references, mostly by senators, actually, to, you know, investigating people because of their religious or political expressions, but, you know, she described a pretty normal set of Justice Department priorities: violent crime, fentanyl, drug trafficking, you know, organized crime, terrorism.

And so I was, I was curious. I couldn't, didn't quite know how to – I know that I, if I were a senator, I wouldn't be able to vote for her because she just doesn't seem to express the fidelity to the core principles that are required, in my view, to do the job. But I did find the hearing kind of reassuring in the sense that she basically ran away from all of his promises about how he wants to use the department.

Anna Bower: I mean, I think that's right. I also will say something else that is notable about these questions around how she might approach how he wants to use the department is that even one of the Republican senators on the committee. Senator Kennedy at one point kind of gave her a little lecture on, you know, you will be tempted to have, you know, he said—he made the claims that they've, they've all been making on this committee throughout the day about the, the lack of faith in the Justice Department, how DOJ has been weaponized, and public perception around its legitimacy has, has really declined.

And then he said and you will be told by people, tempted to, that, you know, you should do this or that and you should try to resist the temptation to get even. He was effectively saying, you know, I hope that you will bring back fairness and not think that two wrongs make a right or something to that effect. He at one point used that phrase.

But that was very interesting to me, that here was a Republican member of the committee who was effectively trying to steer her away from, you know, this kind of retribution plan that Trump has alluded to in the past.

Benjamin Wittes: All right, let's talk about some specific policy areas.

It seems to me, first of all, on the, she's asked about 702 from two ends. One from the – both Republicans. Mike Lee wants her to get on board with reform. And then some of the other Republicans, particularly Cornyn, want her to swear some kind of fidelity to the existing regime. She seemed, in my judgment, to sort of agree with whoever was speaking to her, and I'm not sure she fully understood the issue, which was in sharp contrast, I think, to most of the issues where she was quite conversant with interlocutors of both parties.

What did you make of that?

Anna Bower: Yeah, I, I mean, I think that that's right. I, I, she, she kind of treated it in my, as I understood it, in the way that she did with a lot of these very specific policy issues where, you know, she wasn't prepared to put a policy position on the record. And so she effectively would say, senator, I pledge that I will study the law.

Benjamin Wittes: And that's totally fair and totally normal.

Anna Bower: Yeah. And that is totally fair and totally normal. By my count, I think there was really only one policy area that she really kind of actually explicitly said I want to do, you know, this is a specific thing that I intend to do.  And that was not not just this—there were other areas where she said yes, I agree that we should work on this.

But this is the one she specifically said is that she vowed to block officials from using the Southern Poverty Law Center as a source of the complaints, uh about civil rights abuses, which is a very niche thing to do, to really commit to. I think at one point she said I'll do that on the first day or something to that effect, or immediately.

But when it came to FISA, you know, she, she really just kind of waffled and didn't say much of substance about it. But I mean Ben, what stood out to you in terms of what it says about how the Trump administration—I mean, does this indicate that the Trump administration does not have a clear plan or position on FISA? Like what what stood out about it to you? Is there a change here, or what did you make of it?

Benjamin Wittes: It's gonna be a huge problem for the Trump administration not in the first year, but in the second.

Anna Bower: Yeah

Benjamin Wittes: And the problem is that the reauthorization—which was only for two years—was a huge problem, huge headache for the Biden administration, which knew what it thought of it.

You know, it was, it wanted a reauthorization as clean as possible. It settled for some significant reforms, some of which that people like me thought were very unfortunate, honestly. So even with a full commitment to it, investment of, you know, an enormous amount of White House time, of Justice Department time, of, of IC time, it was hard to do. And it was hard to do because of this coalition of MAGA conservatives and, you know, civil libertarian liberals. And you put them together and you get something that's become very, very hard to navigate from an administration point of view, even when it knows what it wants.

Well, this administration has not formulated a policy on the subject. So Trump himself has expressed a lot of hostility to FISA because of the Steele dossier, and because of the Russia investigation, which, by the way, involved a completely different part of FISA, but that's a different matter.

The intelligence people within the Trump administration—and this is why I was asking Tyler about Ratcliffe's reaction—they understand the value of 702, they understand the fact that it's, you know, we would go dark on a lot of foreign intelligence, both about CT, counter terrorism, and about, you know, great power conflict, without it.

Tyler McBrien: Ratcliffe said, any given, any given briefing, half of the intelligence is collected through 702B.

Benjamin Wittes: That's right. It's the single largest contributor to the President's Daily Brief, by a lot. And so, the professionals, the Mike Pompeos and the John Ratcliffes understand this, right? But there is a faction that sometimes on different days often includes Trump himself, and has certainly included Kash Patel, that is very hostile to this. And so, she's asked about it two different times, again, or maybe three times.

Anna Bower: I think there were four, I think there were four different senators who asked about it.

Benjamin Wittes: So once she's asked whether she understands that it's a very high value contributor to U.S. Intel, and she says she does. Then Mike Lee guides her, I think, quite cleverly through, you know, aren't warrants important discussion, right, and is there a national security exception to the warrant requirement, which, incidentally, she didn't know the answer to at first, which, again, shows that she's worked in state law enforcement, not federal law enforcement.

And kind of gets her to say, yeah, a warrant requirement first for queries of the 702 database would be healthy, or at least to sort of a seed to that. She's gonna live to regret having said that. And if she doesn't herself, at least whoever becomes the head of NSD under her is gonna have a lot of trouble as a result of that.

Anna Bower: Yeah, I'm glad you mentioned, too, that Kash Patel, I was gonna say that Kash Patel actually was a subject that came up a lot today. And I certainly think that at his confirmation hearing, this is going to be a subject that they will explore, ask him a lot of questions about in part because he spends a significant part of his book “Government Gangsters” talking about FISA reforms.

He has a number of very specific reforms that he wants with FISA. Some of them include – he wants a court reporter at the FISA court. He wants warrants to be randomly checked by a team of seasoned, experienced, non-partisan national security lawyers who report directly to the White House or the Attorney General. He wants changes to how judges are selected. All of this stuff.

And so, there's much more of a written record in terms of his positions on FISA, and so at some point, the Trump policy team is, I think, likely, you know, preparing him for how to answer these questions that are bound to come up, and so we may get more of a sense then in terms of what the Trump administration is thinking.

Benjamin Wittes: So we're going to wrap in a moment, but before we do, I just want to say, Kash Patel was a huge presence at Pam Bondi's hearing today. He kind of loomed over it. My impression was Democrats do not hope to defeat her, but they hope to use her to defeat him. Was that your impression as well?

Anna Bower: I absolutely think so. Yes. I think that's right.

Benjamin Wittes: All right. So before we go, I'm just going to go in order of the certainty of confirmation and ask each of the relevant people to identify the number of no votes on the Senate floor. Scott, how many no votes is Marco Rubio going to get?

Scott Anderson: Oh gosh, that's a really hard question. I'm going to say three.

Benjamin Wittes: Three no votes for Marco Rubio. Any prediction about who any of them will be? Particular gold star if you get somebody right on this question.

Scott Anderson: Senator Paul will be my number one guess. They had a fairly testy exchange, so it'll come from inside their own house if I had to guess on one. He definitely actually had the most hostile questions, I should have mentioned that earlier, aside from Senator Murphy, and Senator Murphy's weren't really about Rubio.

Benjamin Wittes: Excellent, excellent prediction.  I have no idea if any aspect of it is right, but Tyler, how many no votes on the Senate floor does Mr. Ratcliffe get?

Tyler McBrien: Can I just say that his, his record will be better than his DNI vote, which was the most number of opposition votes in DNI's admittedly shorter history. I'm so bad at this. More than Rubio.

Benjamin Wittes: Can't give us a number?

Tyler McBrien: Nah, I'm bad at it.

Benjamin Wittes: I'm gonna say he's gonna get 25 no votes. Alright, Pam Bondi, I think this one's pretty easy. How many, how many no votes does Pam Bondi get?

Anna Bower: Okay, politics, this is not my area whatsoever guessing how many no, no votes someone's going to get in Congress. But like, look, I think that for the reasons you articulated, I do think that there are going to be a number of Democrats who hold out, but I think she's going to easily get confirmed.

Benjamin Wittes: She will easily get confirmed but 45 Democrats, maybe 47 will vote against her. 

Anna Bower: That's, yeah, that’s right.

Benjamin Wittes: The only question in my mind  is whether she will be confirmed and a certain group of Democrats will decide – like Cory Booker or something who had very positive exchanges with her — you know, have specific things they want to work with her on and you have a much better relationship with the Attorney General if she's got your vote.

So I wouldn't, I wouldn't ignore the possibility that three to five Democrats vote for her, but as a group, they're going to vote against her because she can't say credibly that she won't do what Donald Trump says at the Justice Department on investigative matters. And I think they just, they won't be able to vote for her under those circumstances.

There you have it. We've gone from three votes against to, we've covered the gamut here, at least among Democrats, but they're all getting confirmed. We will be back, so join us. We will continue to cover hearings as they happen. We will see you next time.

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