Lawfare Daily: Congress After the 2024 Elections

[Intro]

Quinta Jurecic: What we've seen more recently in American politics is that the dividing lines tend to be not over institutional turf, but over party turf. And so if there's unified control across Congress and across the executive, even if, you know, the executive takes actions that would seem to eat away at the institutional powers of Congress. The party in control of whichever chamber of Congress is going to be less interested in checking those excesses.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, Editor-in-Chief of Lawfare with Lawfare Senior Editors Molly Reynolds and Quinta Jurecic.

Molly Reynolds: Even if the legislative filibuster lives another four years, that doesn't mean that there aren't a lot of other ways to accomplish policy ends that will have real consequences for Americans, even though it doesn't happen as the result of the abolition of the filibuster.

Benjamin Wittes: In a live recording on November 8th, we talked about how Congress will work with President Donald Trump in his second term, what congressional oversight might look like, and much, much more.

[Main Podcast]

Molly, get us started. What do we know about the composition of both the House and the Senate? And what questions are still meaningfully in play in terms of the distribution of power?

Molly Reynolds: Sure. So it is about 3 o'clock on Friday, November 8th. So I'm just timestamping this recording since, particularly in the case of the House, as I will say in a moment, things remain somewhat fluid.

I'll start with the Senate. So right now, it looks like Republicans will control 53 Senate seats, Democrats 47. The biggest source of uncertainty in that count is what's going to happen in Pennsylvania. The Associated Press and a number of other news outlets have called the Pennsylvania Senate race for Dave McCormick, who is the Republican challenger. But Bob Casey, the Democratic incumbent has yet to concede and there are ballots still being counted and a number of provisional ballots yet to be adjudicated.

But, and it is possible that race, when counting is finished, that race will come in under the Pennsylvania recount thresholds, in which case it would go to a recount. But, again, Casey currently trails and at least some news outlets have called it for McCormick. And so if that holds and things proceed, as they look like they are going to in both Nevada and Arizona, we'll end up with 53 Republicans, 47 Democrats.

I'll say before I talk about the House that that will include a number of Democratic senators from states that voted for Donald Trump. So it'll include again, if everything shakes out the way it's looking, it will include Elissa Slotkin in Michigan, it will include Tammy Baldwin in Wisconsin, it will include Jacky Rosen in Nevada, it will include Ruben Gallego in Arizona. And I make a point of saying that because that is somewhat historically unusual in the last decade or so of presidential politics.

So before this year, if we look at the last two presidential cycles, 2016 and 2020, there's exactly one case of a senator from one party winning a state while the presidential candidate of the other party carried the state. And that's Susan Collins in Maine in 2020. So we’re in this, sort of, era of relatively few split outcomes, so just as we, sort of, I know most of what we're going to be doing in this conversation is kind of looking past the election. But I think it's worth noting that in that way, this is a little bit anomalous from what we've seen in several recent cycles, this sort of persistence of some split results in particular states.

Benjamin Wittes: And Molly, just before you move on to the House, you know, other than the question of what Democrats would have to do in the next election cycle to take back the Senate, does anything really turn on whether McCormick or Casey prevails? I mean, it's the difference between a 52-seat Republican majority and a 53-seat Republican majority. Are there issues that that's important for?

Molly Reynolds: I don't know that I could identify particular issues, except to say that there are a set of things, and we can talk more about this when we talk about sort of the implications for, of the results for what's actually going to happen in the Senate and the House. But in general, each additional seat that a party has gives it that much more room to maneuver in situations where it can do things at a simple majority threshold in the Senate.

So we'll talk about the filibuster in a little bit, but for the things in the Senate that the Senate can do without the threat of the filibuster, there is some legislation, we'll talk about that, but also confirming nominees both to the judicial branch and to executive appointments. You know, 53 senators lets you lose Lisa Murkowski and Susan Collins on some things and then still have, kind of, some additional votes to play with, a little bit more than 52 senators does.

And so you're right to think ahead to future electoral cycles as well, but I think generally people should just think of it as like each additional seat gives Republicans a little more flexibility on building a coalition around a given nominee, a given judge, and then in the case of some pieces of legislation, around particular legislative priorities.

Benjamin Wittes: Alright, so let's turn now to the House where the results are less clear. It appears that the Republicans have an edge as we get more and more districts being called, but it's not entirely clear, at least not to me, that they have control of the chamber yet. How do you understand the state of play in vote counting in the House?

Molly Reynolds: Yeah, so I think in the House, the most likely outcome is that Republicans have a majority, the, although it is not, again, out of the realm of possibility that Democrats end up with a very narrow majority. But should Republicans hold the majority, my guess is it's going to be somewhere between 218, which is the barest of majorities, so there are 435 House members, so, a single majority is just at 218, well, between 218 and about 222 seats, which is for folks’ reference where they started the current Congress at, so at 222.

And there again, some of what I said about the exact size of the Senate majority holds for the House as well. Which is to say that the more each individual seat that you get in the House gives you a little bit more room to maneuver. Anyone who's paid any attention to House Republicans, particularly over the last two years, will note that unity, intraparty unity has not been their strongest characteristic over the last two years.

I will say that I expect unified party government to be somewhat clarifying in that respect, in terms of I think it will help solve some of the intraparty divisions. I don't think it will help solve all of them. And when we talk about legislation, we can talk about ways in which I think that's going to play out.

But obviously, when you have 222 seats, you have a little bit more room to maneuver than if you're at 218. The other thing I'll say about the size of the House majority is that if we look back over the recent history of the House, there, very narrow majority can be quite unstable over the course of a Congress.

So, just as an example, in both of the last two Congresses, between Election Day and when the new Congress was sworn in January a member-elect died. And so, you know, that is not, those sorts of things are not out of the realm of possibility. We have copious examples of folks, you know, getting, in the House getting sick and having to miss lots of votes.

So, a very narrow majority particularly when you might think that you're going to lose members on the margins for one reason or another, can prove difficult for governing or sort of throw a wrench in the best laid plans over the course of a Congress.

Benjamin Wittes: All right, so, Quinta, let us assume, based on what Molly just said, that there is a 75 percent chance that there is Republican control over the House, and a 25 percent chance of Democratic control over the House. And let's, you know, that's give or take in both directions.

It seems to me, first of all, that very small number of seats that will decide that is hugely consequential for a Trump second term. And you recently wrote a piece that I call internally the ‘One Cheer for the House of Representatives’ piece. Tell us a little bit about the argument that you made in that piece and why it is so significant who controls the chamber for purposes of oversight of a Trump administration.

Quinta Jurecic: Two cheers for the House, Ben. They get two cheers.

Benjamin Wittes: They get two cheers? No, not three, but okay, one or two. It's cheering anyway.

Quinta Jurecic: Exactly. Yeah, so I think that the point to understand here is, well, you know, a very narrow majority is going to make things very tough for once, you know, whoever has the majority.

Being on the right side of that majority means that you get control of the committees. And that means that you get to determine the investigatory process, and you have subpoena power. And in the past, what we have seen is that means that a Donald Trump administration with a Republican House and unified Republican control of Congress looks very, very different than a Trump administration, sort of, battling with a Democratic House.

And of course, I'm referring to the first two years of the first Trump administration where there was a Republican House and a Republican Senate. And then the second two years in which control of the House flipped to the Democrats. In the first two years, we really saw very little interest on the part of Congress in checking or performing oversight on the executive branch.

The sort of phrase that you hear often from legal scholars and political scientists is that this idea of separation of parties, not of powers. So, the idea is that, you know, as set out in the Federalist Papers, you have the legislative branch and the executive branch, both have their institutional equities. And so we have ambition to counteract ambition in the language of the Federalist Papers.

What we've seen more recently in American politics is that the dividing lines tend to be not over institutional turf, but over party turf. And so if there's unified control across Congress and across the executive, even if, you know, the executive takes actions that would seem to eat away at the institutional powers of Congress, the party in control of whichever chamber of Congress is going to be less interested in checking those excesses.

And this is true, you know, across both Democrats and Republicans. I think it was particularly notable under the first two years of the Trump administration because the abuses of power coming out of the executive were so great that it was particularly striking that the Republican Congress was just not very interested in doing anything. This isn't 100 percent true in every single instance. There were some instances of minor pushback, but on the whole, there was really very little.

Then what happens, of course, is we have the 2018 midterms. There's a blue wave, Democrats sort of ride popular discontent with Trump into a House majority under Speaker of the House Nancy Pelosi, and the second two years look really, really different. There is aggressive congressional oversight.

We see that in a number of ways. We see it in terms of investigations of Trump's finances, for example, which ultimately led to the Supreme Court decision, Molly’s and my favorite Supreme Court decision in the Mazars case. There was the congressional hearings, of course, with Michael Cohen as a witness, which ultimately seemed to have been the sort of spark that led New York Attorney General Tish James to actually start the investigation that led to the civil judgment against the Trump Organization.

And I think, you know, most memorably, perhaps, we have the first impeachment. So this is now far, far back in the past, but if you search the dusty recesses of your memory, you might recall that in the spring of 2019, news reports started to surface about concerns that Trump was essentially blackmailing the government of Ukraine to provide, sort of, made up negative information to bolster him in a potential presidential run against Joe Biden.

This ended up turning into a major scandal in significant part because the House, the House Intelligence Committee and the House Judiciary Committee did an extraordinary amount of legwork in digging into these allegations. And, on the part of the House Intelligence Committee, building a number of hearings putting together a really involved report, releasing a ton of transcripts of witness interviews, and this resulted in the first impeachment.

Of course, obviously, the Senate did not convict and remove Trump from office, but it was that House oversight and this sort of willingness to take these, this whistleblower report and really ran with it, that gave us a pretty astonishingly detailed record of misconduct that we simply would not have had otherwise.

Then the other examples to point to are, of course, we have the second impeachment, which was after, so this is the Congress after Trump had left office, and following that, the January 6th Committee. And again, this is a little different because it's a democratically-controlled House that is sort of pushing back against a now former president, but I do still think it is worth noting because it's an example of sort of what can be done in terms of investigative work.

And I'll focus here primarily on the January 6th Committee, because I think that's sort of more useful for the specific conversation here. The second impeachment was really sui generis in a lot of ways. What the January 6th Committee essentially did was dig into a story that at that point it was very unclear whether the Justice Department had any interest in pursuing and released an extraordinary amount of new material to the public through transcripts, ultimately a report, a series of hearings, some of them in prime time.

And I think that it is really telling that the material that we have seen released from Jack Smith is, in large part, basically, the same story that the January 6th Committee told, with some details here and there that the committee wasn't able to get, for complicated reasons that have to do with the difference between a congressional investigation and a grand jury probe.

But ultimately, you know, the committee was really able to uncover new information about January 6th and put it forward to the public, and that is a pretty astonishing achievement, especially in context of, you know, I think what you can reasonably say is a broader story of a justice system that was sort of unable to push against the abuses that we saw from Trump and his effort to hold onto power in 2020.

And so that is a very powerful story about what we can see from a chamber of Congress that is actually interested in pushing back against executive abuses. If the Democrats do manage to pull things out in that 25 percent chance, I think for that reason, things will look very different under the first half of the Trump administration, pre-midterm, than they, than they might otherwise.

Of course, I suppose there's, you know, some possibility that some Republicans might decide to abandon separation of parties, not powers, and go back to separation of powers and seek to hold Trump to account as the Federalists would have wanted, although I don't think any of us are holding our breath on that.

Benjamin Wittes: All right, so with that as prologue, let us assume that current trends continue and that we have unified Republican control with a very narrow margin in the House, and either 52 or 53 seats in the Senate. So let's start with the oversight question and say Molly first, and then Quinta: what would you expect from Congress in the oversight department if that's the configuration of power?

Molly Reynolds: Yeah, I mean, I guess to just sort of agree with what Quinta was saying about the trends that predicted what we saw during the first Trump administration or the first two years of the first Trump administration, is especially in the House, this notion that a party does not do especially vigorous oversight of an executive of the same party in the White House, is a really long historical trend.

It sort of is present throughout the postwar period. It's been, you know, documented by political scientists and historians. I've done some work in this space as well. And so, that, you know, even before we get to anything that is particular to Trump and the current congressional Republican conference, we just shouldn't expect that much oversight.

And so, and I think when you sort of add on the fact that between the first Trump administration, the first two years, the first Trump administration and now, the congressional Republican conference has gotten Trumpier. So it has, many of the folks who were in the Republican conference who were willing to stand up to Trump on various things are no longer in the House, or especially in the Senate.

I actually think that this, for a number of reasons, is potentially more consequential for things in the Senate than it is in the House, because any one individual senator has more influence than any one individual House member. And some of the 2017, 2018 loudest Trump critics in the Senate are either, are no longer there now or will no longer be there in January. I'm looking at you, Mitt Romney.

And so I think that this is just sort of a long way of saying that like what Quinta said about history leads me to believe that we should not expect an especially vigorous oversight of the Trump administration in the first two years of a Trump term under unified party control.

Benjamin Wittes: Quinta, thoughts?

Quinta Jurecic: Yeah, there's no disagreement with Molly there. I mean, I think what I would expect to see in terms of oversight is not oversight of the administration, but oversight of the administration's perceived enemies. And we kind of have a taste of what that looks like because we have seen it over the last two years under a Republican controlled Congress, chiefly though not entirely, in the form of Representative Jim Jordan's Judiciary Committee Subcommittee on the Weaponization of Government. Which has done an enormous amount of work in pursuing researchers, people who work within the federal government, people who work at various social media platforms in the name of pursuing alleged censorship of Trump, his supporters, people on the right more broadly.

We've published a great deal at Lawfare about what that has looked like, including articles by some of the targets of that investigation, including Kate Starbird, who's a professor at the University of Washington. I feel pretty comfortable saying that the allegations that have come out of that committee have proved to be, on the whole, quite meritless, but that really has not stopped the committee from continuing to conduct its work in a very sort of accusatory and retaliatory way.

I believe that Representative Jordan put out a tweet this morning suggesting that he would be planning to similarly request information from Special Counsel, or currently Special Counsel, Jack Smith. And I would anticipate that we would see more of this across basically every corner.

So the initial weaponization committee focused on, again, sort of social media platforms, researchers, people within government who were doing often pretty anodyne work that the committee interpreted as malicious in some way or another. And I think the kind of the lesson from that, frankly, is that there's not a huge amount of rhyme or reason to who the sort of spotlight will end up focusing on. But anyone who is perceived in some way to be an enemy of Trump or of the committee in some way.

And so I think that we're going to see a lot more of that type of hearing and that type of oversight, sort of oversight to protect the administration from perceived threat or to seek to wash criticism in advance, rather than oversight of the administration.

Molly Reynolds: Yeah, just one thing to add on this is that, again, if we think about these last two years in the House is at all predictive of what might happen. So, a lot of what Quinta was just talking about involves, sort of, investigations and targeting of individuals, both inside and outside of government.

I also sort of expect that we'll see, there has been an effort over the past two years to investigate the January 6th Committee, to sort of investigate the investigators. I could easily imagine sort of, you know, this question of like, Quinta, I think mentioned this letter that Jordan has sent telling Jack Smith to preserve all his records. I could easily imagine sort of a similar thing of the Smith investigation.

And I don't, I want to say this without sort of minimizing at all the degree to which these investigations are extremely disruptive and extremely damaging and extremely dangerous for the individuals who are the target of them. But one of the other things that we've seen over the past two years is that there can and sometimes is a gap between sort of what the investigation does and then like what its ultimate product is.

And Quinta and I wrote about this in the context of the Biden impeachment with sort of the tagline of like, if an impeachment falls in the forest, did it, and like no one is around to hear it, did it really happen? And so again, like, there is this, I think as we think about what's going to happen, there is this possible world where, I'm not saying this is like a good world to be in, but where we have these investigations that are really bad and really damaging and really terrible for the people who have to go through them. But then they ultimately produce very little of like, substantive or political consequence in the end. And maybe in, maybe the purpose of doing them in the first place was not for actual substantive or political consequence in the end, but I think that's, again, if we think about what's happened in the House over the last two years I think that's a possibility here, too.

Quinta Jurecic: Yeah, I think that's totally right, and just to draw a line under that a little bit more, I think that one way to look at it is if you understand these investigations as having a purpose of a policymaking purpose, which as Mazars reminds us, the congressional power to investigate derives from the congressional power to legislate. So these should nominally be in service of some kind of policymaking, and they have been across the board failures, but that they make a great deal more sense if they are understood as an effort to frighten people into submission, or perhaps more precisely frighten institutions into submission.

And we've seen a great deal of that in terms of, for example, Stanford sort of pulling the rug out from under the Stanford Internet Observatory, which was one of the major targets of the Weaponization Committee. The people who were at the Internet Observatory are still, in I think most cases, still doing their work, but the university essentially decided, just based on public reporting, it seems that the university decided that it was not worth the trouble.

I think, Eugenia Lostri and I wrote an article in Lawfare a couple days before the election about how, similarly, pressure from this committee, we believe, has led the Cyber Security and Infrastructure Security Agency, CISA, to pull back from a lot of work that was really valuable in terms of protecting election workers and providing them support in countering, you know, rumors, falsehoods, that kind of thing around the election.

And so I do think that it has been successful in terms of pushing institutions that for whatever reason come into focus as supposedly anti-Trump to sort of run scared, if that makes sense. And so I think that on that level, it has been extremely successful and I would not be surprised at all if it continued.

I think another point, I have seen suggestions that, you know, Trump should have the Justice Department prosecute the members of the January 6th Committee or that kind of thing, or maybe even prosecute Jack Smith for who knows what. That's going to be a tall order just because you got to get that past a grand jury. That can be hard. And in the case of these members of Congress, of course, they are also protected by the Speech or Debate Clause. So it is hard, although possible to create a big headache for somebody by investigating them criminally and by charging them criminally.

I sort of doubt whether that would go forward, although never say never. It's worth emphasizing that would be a crazy, insane, norm breaking and horrific thing to happen and I don't want to talk about it too casually. But it is on the table. And so precisely because I think that would actually be more difficult to get through the courts, I would not be surprised if some of that energy was kind of channeled into Congress, because it is actually a lot easier just sort of logistically to haul someone before a committee and yell at them a lot. It's easier to do that than to convince enough grand jurors that there's sufficient evidence to indict.

Benjamin Wittes: All right, let us move on to other things that Congress does. One of them involves nominations. There are a lot of nominations that are beyond the scope of Lawfare’s attention, but the ones to national security and foreign policy positions are squarely within our orbit.

Trump has a lot of eccentric people that he has affection for, people who have had, some of them have had criminal issues in the past, like Mike Flynn. Some of them have run riot over federal agencies. To what extent do you expect him to have any difficulty getting substantial number of people confirmed, given that he has 52 or 53 senators? I'm not sure I see where, like, if you nominate Rick Grenell to be, you know, run the CIA or head the State Department, I'm not sure I see where the votes to reject him come from.

Molly Reynolds: Yeah, it's a good question. And obviously, again, to go back to something I said earlier, like here, 52 and 52 versus 53 can be meaningfully consequential.

I'll say two things. One, or three things. One, in general I don't expect this to be a place where the Trump administration has a lot of trouble getting their people confirmed, with the caveat that really every president has at least one high profile nomination go sideways for one reason or another and it's often sort of impossible to see which one it is coming. And it happened to Biden, it happened to Trump, it happened to Obama, so like this is something, someone, is gonna go wrong just because that again, like, that's very normal. And so, I, like, just again, by virtue of history, I expect that to be true here.

The other thing I will say is that, sort of, putting aside any difficulty that the Trump administration may or may not have getting its folks confirmed by the Senate, in the first Trump administration, Trump was not shy about his fondness for acting officials. I think he in fact said things like, I love my actings.

And so, I would expect that in situations where either it is, there is difficulty confirming someone or just for any of the number of other reasons that, you know, they want someone in faster than they could clear a Senate confirmation process, particularly in a world where they're, we're going to talk about legislation a little bit, but where there are competing legislative priorities at the beginning of a term and all that stuff. It would also not shock me if we see sort of a return.

And there actually, I'll say, has been, I haven't looked at the numbers, but just sort of anecdotally, there's been a fair amount of this during the Biden administration as well, as like, more and more of the Senate's political conflict has gotten loaded on to the confirmation process. As it's gotten harder to legislate, all the political fights get fought out over nominees, see the great Tommy Tuberville experience of 2023. And so, again, I think that I would expect a fair amount of sort of this actings dynamic, which is not great from a separation of powers perspective. Like even in a world where it is not hard for President Trump to get his nominees to the Senate, we still want the Senate to have fulfilled its constitutional advise and consent responsibilities.

Benjamin Wittes: Yeah, so, can I throw an idea out there and have both respond to it? It seems to me that 47 or 48 senators in the minority is just enough to have a significant, lots of significant confirmation battles, because you have Murkowski and Collins who are potentially gettable for, and then you only need one more.

So it seems like it's always kind of in reach to defeat somebody who you think you can paint as particularly noxious, but it's in fact not close enough to actually defeat a lot of nominations. And so it's the point at which you have the most nomination fights that all amount to people getting confirmed in close votes. Your thoughts?

Molly Reynolds: Sure. I'll just say very briefly, I think that's right. And I would say it's especially right because of the last thing that I said in response to the previous question, which is that while there will be legislating that happens, under unified party control in a way that did not happen over the past two years under divided party control.

If you are the Democrats, particularly at the beginning of the administration in the Senate, the way that you try to sort of demonstrate your strength as a minority and how your posture as we go into four years in the Trump administration is to try and make these things as, sort of, contentious as possible.

And so it's buried deep in the back of my brain, but there's all kinds of stuff from the beginning of the Trump administration about like, were they going to try and deny quorums and committee to get people reported out and like, make the Senate Judiciary Committee hold things over and just all that kind of stuff that I suspect that we will see more of. So it'll be, the outcome will still be that by and large, people will get confirmed, but there'll be a lot of sort of energy consumed in pursuit of that.

Quinta Jurecic: So I think that the point that I would make is just, first off, just to put a fine point on the usefulness of confirmation hearings. Again, we have to dig back quite far in the past here, but the chain of events that ultimately led to Robert Mueller's appointment in 2017 started with the confirmation hearing of Attorney General Jeff Sessions, who made a promise that he would recuse from any investigations, if there were circumstances under which his impartiality could be questioned under Justice Department guidelines, that promise, I believe, was extracted from him by Senator Al Franken. Okay, yes, it was Franken.

But it was extracted over the course of a contentious confirmation hearing. Information came up that linked Sessions to some of the conduct being investigated by the Justice Department concerning the Trump campaign's links with Russia. He recused and this sort of sets in motion, eventually, the Mueller investigation.

If there had not been that contentious confirmation hearing, that might not have happened. And I think that is a pretty powerful statement. Of course, that also depends on things like, you know, the individual in question having things like shame, which may not be in great supply this time around, Trump perhaps learning from Sessions’ experience, but I do think it matters.

And then to the other point, I think it is worth emphasizing that the statute that allows the president to kind of shuffle people around in an acting capacity without having to go through the confirmation process, the Federal Vacancies Reform Act is one of the many, many, many statutes and reforms that were on the table for potential reform after Trump left office last time.

It was included in a package of reforms that passed in the House, the Protecting Our Democracy Act, and never made it through the Senate. And there are reasons for that, which we can talk about. But it is definitely true that, you know, if you start looking at the question of sort of what might Trump be able to do this time without congressional oversight or pushback, the answers to a lot of those questions have to do with authorities granted by Congress that Congress chose not to put the energy into reforming or rolling back in some way, really under the first two years of the Biden administration with Democratic control of the House.

Benjamin Wittes: All right. Molly, let's talk about a few specific legislative issues, but before we do, I want to talk about some legislative meta issues. A lot of people around town are panicking today because they've discovered that all of a sudden it could be Republicans who get rid of the filibuster. And then you could you have, you know, massive reproductive rights legislation. And I keep trying to tell people, no, Republicans aren't going to get rid of the filibuster. They like the filibuster. Who's right? 

Molly Reynolds: I tend to think you are, and here's why. If we look at kind of the long history of the filibuster, which for my sins I have spent much of my life doing, we can see that the times that the filibuster gets changed are when there is a majority who has something that they are sufficiently committed to doing, that they are being prevented from doing so by the filibuster. And they are so committed to doing it and so unified around it that they are willing to make a change to the way the Senate works to make it happen.

You know, when this happens, you will hear sort of rhetoric around, like, high minded principles about how the Senate works. But there's always some sort of precipitating, underlying policy question. And, like, I use policy sort of expansively there. You know, we saw it, like, you can think about Neil Gorsuch's policy in this case. You can think about the blocked D.C. Circuit judges in 2013 in this case. But there's a reason. There's something that breaks the dam.

And at this point, I have difficulty seeing what that would be for Republicans, especially because there are other things that are very important to Republicans that they can do without needing to abolish the filibuster. We already talked about nominations, so they can confirm, nominate and confirm executive branch appointments. They can nominate and confirm federal judges, which we know has been sort of a major project of the conservative movement.

And they can, and we can talk about this at some length, they can do some legislating particularly on taxes via a particular set of legislative procedures known as budget reconciliation. That again allows them, the like important thing to take away from the high level version of this conversation, is that that most of what they want, really want to do, they can get done without needing to worry about the threat of, of a filibuster.

And I think that we can talk about and sort of debate the role of, that abortion did or did not play in the 2024 results. And we can talk about whether people learned the wrong lessons from the 2022 midterms. But I do think that there's not, at least as a sort of a matter of first principles, the, sort of, appetite for getting rid of the filibuster to do something like a nationwide abortion ban. You know, we shall be vigilant, but I think there are other priorities that they have.

And then the last thing I'll say is just that, again, with the presence of a very narrow majority in the House, whatever you'd want to get, whatever you'd want to get rid of the filibuster to do, you'd also, would have to also be something where you are, have successfully held together that majority in the House to do the same thing. And I think, again, if we're talking about like 219 seats, there are real questions about what that thing could be as well.

Benjamin Wittes: Yeah, I just want to add to all of this that Democrats have much more they want to do legislatively than Republicans do.

Molly Reynolds: It's sort of the fundamental difference between the parties. The one fundamental difference.

Benjamin Wittes: Right. Republicans want to, say they want to cut spending and do want to cut taxes. And they really don't have a lot of legislative ambition beyond that. And therefore, the filibuster does a lot of work for Republicans in preventing Democrats from doing things.

And it does relatively little work for Democrats in preventing Republicans from doing things. And, not none, especially because the, but because the tax cuts can be done through budget reconciliation, it just, it, over time, it does more work for Republicans than Democrats, and therefore Republicans won't get rid of it. Quinta.

Quinta Jurecic: Yeah, two, two just sort of additions to that. One is, I think that's true in terms of the sort of traditional, like, deregulatory Republican Party. The Trump's Republican Party is a somewhat more confusing apparatus. But I think we can say that the legislative goals that the party has tend to be, as you say, things that you can handle through reconciliation.

The more aggressive policy goals that Trump has are more easily done just through the executive, such as deportation, right? Like reforming, actually reforming the immigration system, as we saw with the collapse of the bipartisan immigration bill, requires legislation just saying we're going to round up a bunch of people. That's something that you can do or attempt to do, at least, to the extent that DHS has the capacity just through the Department of Homeland Security. So I think that is worth emphasizing as well in so far as Trump has sort of, to some extent, in some ways added a different element to Republican party priorities.

The other thing that I would note is also that there is a, I think that this also needs to be understood in conversation with a willingness on the part of the executive branch under Trump to use existing legal authorities passed by Congress in a particularly aggressive way. The Vacancies Reform Act is one example of that.

The other example, of course, that has been much discussed is the Comstock Act, which is from the 19th century and prohibits sending obscenities through the mail. Because it is already on the books, there's been a fair amount of discussion as to whether a Justice Department could adopt an aggressive reading of it that would prohibit, you know, sending various items related to reproductive health care through the mail as well. And that if your sort of, policy goal is limiting access to abortion that does a lot of the heavy lifting for you without Congress having to be involved.

I think it's relevant because you have that kind of pairing of, you know, a GOP that can get a lot of it what it wants in terms of tax cuts without needing to worry about the filibuster. And an executive branch that may actually have more radical policy goals that they feel that they can accomplish because they're willing to take a extremely aggressive view of statutes that are already on the books.

Molly Reynolds: Yeah, I think that's right. And I do think it's a really important dynamic to talk about. And just the idea of like, even if the legislative filibuster lives another four years. That doesn't mean that there aren't a lot of other ways to accomplish policy ends that will have real consequences for Americans, even though it doesn't happen as the result of the abolition of the filibuster.

Benjamin Wittes: All right.  Molly, you've alluded several times to the reconciliation process, and one of the other things that people around town are freaking out about is can't you do everything by interpreting the Byrd Rule broadly and by making things that aren't obviously subject to budget reconciliation subject to budget reconciliation and thereby get rid of the filibuster without getting rid of the filibuster?

Molly Reynolds: Let me start by just saying, budget reconciliation process is a feature of the congressional budget process that allows for legislating on taxes, on certain kinds of spending, and on the debt limit to be done in a way that is not subject to the filibuster in the Senate. The process is cabined by a whole bunch of existing rules, the most prominent of which is this thing called the Byrd Rule, which limits the content of reconciliation bills.

And in recent history, every time we have seen a reconciliation bill come up under unified party control, there's been sort of a lot of pushing of the envelope related to the Byrd Rule, and this sort of, you know, you saw at different points in the last decade. Both Ted Cruz and Bernie Sanders call on their fellow senators to disregard the advice of the Senate's parliamentarian as to whether things were permitted or not permitted to be included in the reconciliation bill under the Byrd Rule.

And so, it is certainly possible that we could see some of this same envelope pushing, the same boundary pushing in the next two years. I tend to think that they're, certainly on the tax side, there's actually relatively, they can do basically anything they want, like that's not exactly true. But most of the major obstacles to doing a very large tax cut package, this is clearly, like, their shared top legislative priority, most of the challenges in doing that are going to be political, not procedural.

They're going to be around, like, do the folks from high tax states really go to bat for the state and local tax deduction? Do people from places that, do Republicans who represent places that have benefited from certain spending under CHIPS and Science and the Inflation Reduction Act and that sort of thing go to bat for those tax incentives? And so that's a political problem that has nothing to do, it has very little to do with, like, the procedures of the Byrd Rule.

I do think that, you know, we should, again, keep our eye on attempts to read the Byrd Rule expansively. I think as we look at the legislative side of what is likely to happen on immigration policy, I think we have past examples that suggest that you could use reconciliation to approve new spending in pursuit of aggressive immigration enforcement. You could use reconciliation to make it harder for immigrants to access certain kinds of public benefits.

Past example tells us that it is difficult to use reconciliation to actually adjust the immigration status of an individual. Folks may actually remember this from the 2021 Democratic effort to potentially address pathway to citizenship for DREAMers through the reconciliation process, which there's a lot of pressure to do. And then they ultimately did not because the parliamentarian had advised that was not permitted.

And so, again, like, we're entering a world of continued norm stretching, norm pushing, and so I don't want to be sort of overly sanguine. But I also just, we have lived in an equilibrium where the Senate's parliamentarian has been, like, the arbiter of these questions, and members of both parties, even under significant pressure from other members of their party ultimately have not, in broad sweeping ways, disregarded that advice.

Benjamin Wittes: All right. So, with that as kind of background, let's turn to a few specific policy areas that this Congress is going to have to think about. The first, which you know, you're only going to get here on Lawfare because no one else is going to have this conversation this time. Let's talk about 702.

It finally passed. It has a two-year sunset, which I warned at the time was a really bad idea, but that means you're gonna have, it's gonna come up again shockingly soon, and Trump is promising reform of FISA. He's presumably not gonna push for 702 renewal. But the, his administration, who's ever AG, who's ever running the intelligence community, will certainly want it. The Republican caucus has been kind of all over the place on this. What's gonna happen to poor 702?

Molly Reynolds: I think that's a question for you, Ben, but I'll just, the thing that I will say is that in a world where we have some interesting emerging different cleavages between and among the parties, I actually think 702 and Surveillance is a one where the cleavage has been sort of off, and I mean that in that it's like not lined up with cleavages that we see on most other issues.

And the other thing I'll say is that one of the persistent dynamics of the first Trump administration was that Congress would get reasonably far along on trying to reach some sort of agreement. And then Trump would insert his own personal preferences based on the last person who spoke to him into those negotiations. And so I think on 702 and many other things, as we look towards the next four years, we should remember this is how we got a 35 day government shutdown at the end of 2018. And so I just remember sort of that overall dynamic.

Benjamin Wittes: Okay, next issue. Let's talk about Ukraine. There's a supplemental. We don't really know when the amount in that supplemental, which was $60 billion, whenever it passed, is gonna run out, but presumably it won't last forever, and if the Trump administration is going to seek further support for the Ukrainian military, it's going to have to get it through Congress.

I don't know, have the slightest idea how to game that out because I assume that because Trump's own views are so unknown that it seems to me to have, we have very little sense of where the executive branch is and thus no way to know what people who want to support the Trump administration in the Republican caucus would do. Do you have any sense of how to game out what the prospects of Ukraine aid are in this new Congress?

Molly Reynolds: I don't have any sort of beyond what you've just said, except to note that we've talked not at all yet about JD Vance, who, you know, is going to be the vice president after having spent just a little bit of time in the U.S. Senate, where he was a very loud anti voice against additional assistance to Ukraine, and so I have no idea how that will play out in the coming several months, year. I will say that on things like additional assistance to Ukraine, and frankly, like military spending generally, that money will still proceed through the regular legislative process.

And so, to some degree, that's a place where Democrats will have more leverage, because they will need some number of Democratic votes in the Senate to approve those spending bills for Ukraine or anything else. But I do think that I think that basically from December of 2022 going forward till now and continuing into the future, it has gotten progressively more difficult to approve large sums of assistance to Ukraine, and I don't really see much changing that trajectory.

Benjamin Wittes: Well, I think the thing that could change that trajectory is if the Trump administration asked for it, because the resistance to it is almost entirely a creature of MAGA Republicans, and a lot of whom quietly want to do it, like Speaker Johnson, for example.

Molly Reynolds: Right, right. So then I guess the question is, like, what would make Trump himself or high ranking folks in the Trump orbit decide that this was something that they were going to ask for and I just don't know the answer to that.

Benjamin Wittes: Yeah, I don't either and I think until you know who the Secretary of State is going to be and who the Secretary of Defense is going to be and maybe who the National Security Advisor is going to be, it's a very hard question to even speculate about.

All right. Here's one we don't have to speculate about because we know Trump is serious about tariffs. Trump wants to do tariffs. He has a lot of authority to do tariffs on his own. But you know, you do a lot of tariffs and all of a sudden you start hurting domestic, you know, causes prices to go up. You can get a big backlash that comes to you through Congress. What do you see as the coalition for and against tariffs looking like in a new Congress?

Molly Reynolds: So it's an interesting question. Congress itself has not legislated tariffs in a major way in basically a hundred years since in the form of one of the best named pieces of legislation in congressional history, the Smoot-Hawley Tariff Act.

Benjamin Wittes: Smoot! Smoot! Smoot!

Molly Reynolds: And so, and I think, but you've started to see, even in just like the last 48 hours, more public reporting about congressional Republican interest in legislating on tariffs. And I read that as, at least in some part, just responding to Trump's own interest in tariffs. You're absolutely right that there's and you know, I'm sure Lawfare world will talk a lot about this in the coming months, the national security related statutes that permit the president to do some tariff imposition on his own without Congress.

But then there are, because Congress has delegated that authority to him, but there are, that's not unlimited. And so there are like, for the most sweeping tariff proposals, it would require congressional action. And so I sort of read Congress's interest in this, at least as it's emerging, it's just responding to, you know, Trump being interested in this. And so it'll certainly, it's certainly worth watching.

You've also, in this space, started to see some indication or some interest among some Republicans in Congress about revoking China's permanent normal trade relations status, which I sort of put in this general category of Trump economic statecraft things. And so that'll certainly be something to keep an eye on.

Benjamin Wittes: All right. Let us go to audience questions momentarily. But before we do, I just want to throw open the question of whether you see, notwithstanding the point that Quinta made earlier that, you know, we're having separation of parties, not separation of powers these days, whether you see any looming separation of powers disputes between this Congress and this president as likely, or is this going to be harmony?

Molly Reynolds: I have a big one, which is the implementation of the Impoundment Control Act. So there's a lot of indication that some folks in Trump world would like to go after the constitutionality of the Impoundment Control Act. So the Impoundment Control Act is part of the Congressional Budget Act of 1974 that basically prohibits the president from refusing to spend money that Congress has appropriated.

This was in part, what was at the heart of the first Trump impeachment. And there, again, there are a number of folks in sort of Trump's orbit who have telegraphed quite clearly that they think this law is unconstitutional, and that they may both try to challenge it. And in doing so, sort of, create situations where the administration refuses to spend congressionally appropriated funds. And so a real question for me is both, you know what will the administration try? What will the legal proceedings on that look like? And on this case, really, how far can they push congressional appropriators?

And so, to the extent that there is, so there's a long-standing joke that, you know, in Congress, there are actually three parties, Democrats, Republicans, and Appropriators. I suspect that we may test the boundaries of that question in the coming years and see if this is a place where there may be some pushback from folks in Congress. I think it will depend on, like, what the administration is trying to impound funds for. But this is a place where, at least historically, members of Congress with power over the discretionary budget have been very protective of that power.

Benjamin Wittes: All right, we are going to go to audience questions, almost all of which have asked me to read them, so I'm just going to read them all. Jeff asks, what can a vengeful president do to the January 6th Committee members, whether they are currently in or out of office? Quinta, you're a vengeful would-be president, what would you do to the members of committee who investigated you?

Quinta Jurecic: So as I mentioned earlier, I think the Speech or Debate Clause actually really limits what is possible against these members of the committee. 

Benjamin Wittes: It's kind of what it's for, right?

Quinta Jurecic: It is, in fact, literally what it is for. 

Molly Reynolds: In the most literal sense.

Benjamin Wittes: A legislative act against executive retribution.

Molly Reynolds: We've seen in the past couple of years, and Quinta and I have written and talked about this, like, on Lawfare, on the Lawfare Podcast, some stretching. I'm not sure that's the right way to put it, but we've explored some new boundaries in speech or debate jurisprudence. But, like, the idea that members of Congress are protected when they are performing an investigation, it's really, like, that's core Speech or Debate protection. And I don't, again, Quinta may have been about to say this, like, just, at the same time, like, he could certainly try to make people's lives miserable.

Quinta Jurecic: Yes.

Molly Reynolds: And I mean, in the case of the Republicans who are on that panel, Liz Cheney and Adam Kinzinger, like, to some degree, they've already started to live this by their choice to join the panel, and then what they have done with their time after leaving Congress. But, so there's a difference between sort of what they could be prosecuted for and how uncomfortable he could make their lives in reaching the conclusion they can't actually be prosecuted for what they were doing in their jobs as members of Congress.

Quinta Jurecic: Yeah, completely agreed. In terms of, like, legal retribution, which, again, I, like, we should not lose track of the fact that everything that we are describing is, if not illegal, egregiously unethical and a massive breach of democratic norms and should not be accepted.

Having said that, I mean, I think that, you know, if I put on my evil genius hat, the IRS investigations can make people really unhappy, right? There's a famous speech from Attorney General, later Supreme Court Justice Robert Jackson on the nature of the prosecutorial power where he says essentially that the, I'm not going to remember the quote perfectly, but that the danger is that the prosecutor will start looking for a person, and then figuring out what to investigate about them, rather than identifying the potential crime and investigating that.

It'll turn out that Liz Cheney, you know, ran a red light or something. Not that because that wouldn't be in federal jurisdiction, but something along those lines. I do think, you know, having people come and testify before Congress can make their lives very uncomfortable, particularly because, again, another really, I think, dangerous and unacceptable political development. There is a increased use of mass harassment as a political tool just to make people's lives hell.

I believe Cheney and Kinzinger have both experienced this. I actually can't remember, but I think that they have. And you could certainly, you know, just send out a nasty tweet about Liz Cheney, and you can be pretty sure that, you know, she'll get a bunch of death threats, right? And that doesn't depend on anything from Congress or the Justice Department. That's something that can be wielded completely extrajudicially through a sort of vigilante groups.

Molly Reynolds: And I'll just say that, like, the, that is, that it's true of the people who were on the committee, some of whom are still in Congress, some of whom are not. It is also, and perhaps more troublingly true of the people who worked for the committee who enjoy, like, their work enjoys the same protections under Speech or Debate, but they, by and large, you know, are not Liz Cheney and so don't have both the public profile and access to the same resources to protect themselves.

Benjamin Wittes: Stephen asks, how likely will confirmation battles be? The GOP may have control of the Senate, but it isn't like they have a supermajority enjoyed by the counterparts in some state legislative bodies.

I will just say, I think we've sort of already discussed this, but I think confirmation battles, we are at the peak numbers for confirmation battles. The Democrats do not have enough seats to actually make Trump think about the possibility of defeat in nominating somebody. He doesn't have to say, but will Chuck Schumer kill this nominee? But they have enough seats that they can dream about getting three Republicans to flip or four Republicans to flip. And so this is peak, have Sturm und Drang, but not defeated nominee territory, in my view.

Richard asks, Trump has never been shy about using acting cabinet members senatorial approval. This would provide a way for him to appoint people who might be unpalatable, even to the GOP, to positions such as Secretary of Defense and CIA and FBI directors. I'm thinking of folks like Rick Grinnell and Kash Patel. The duration of acting appointments is limited by law. But will that even matter? Is there anything Congress can do to curb the use of actings?

So Quinta has thought about this. This, of course, came up quite a bit, disputes under the Vacancies Reform Act. My sense of it from last time around is that there is pretty clear law on this, but it's pretty easily evadable. There is a lot Congress could do, but it would have to want to do it, which for all the reasons we've discussed seems unlikely. Quinta, do you think that's right? And or am I missing something?

Quinta Jurecic: No, I think that's right. It's, look, it's a really complicated law with a lot of moving pieces, and I have not read up on it as much as I perhaps should in recent months. There was a period under the Trump administration where I understood it very well, and that has passed. But yeah, I think it's fair to say it gives, the existing statute gives the president a great deal of flexibility in moving people around. That's how you ended up with bizarre circumstances, like, Ken Cuccinelli, who, if I am remembering correctly, was briefly the acting…

Benjamin Wittes: No, he was the official exercising the authorities of the acting.

Quinta Jurecic: Exactly! So, I mean, you end up with ridiculous situations like that pretty quickly. And, yeah, there is something that Congress can do. It could reform the law. That's not gonna happen.

Benjamin Wittes: All right, last question, also from Richard. There are a number of conservative GOP senators, such as Josh Hawley, who have taken leave of the right's long standing resistance to antitrust enforcement, especially with regard to Big Tech. Is this going to be a significant problem for those advancing more radically libertarian policies?

I will again, to offer a thought on this, and then if either of you want to as well, feel free. So there are a couple of wrinkles here. One is there's a question coming up very early in the Trump administration that will present a variant of this question pretty quickly, which is what to do about TikTok, and specifically, does Trump try and does he have any legal authority to prevent TikTok from being banned, which the law has prescribed on a massive bipartisan vote? Stay tuned on that question. We have a piece on Lawfare coming out about it. It's actually a really interesting issue.

Look, second point, Josh Hawley is not the only one, the other one is JD Vance, who is now going to be vice president, and this, you know, again, goes to the how much, if any, influence does JD Vance have.

That said, the main group of people around Donald Trump these days are people like Elon Musk, who, you know, run big social media platforms, and so, you know, my view is, I will believe that there is an anti-oligarchic strain of thought that is indeed emergent in some Republican circles has legs when it actually shows that it has legs. And until then, I will assume that it is a dissenting strain that actually makes more noise than policy. Quinta, tell me why I'm wrong

Quinta Jurecic: No, I think I basically agree with that. The anti-Big Tech line among Republicans was always one that worked because it could posture tech companies as sort of big liberal democratic organizations that were arraigned against the little guy. And that fundamentally falls apart when one of your guys, Elon Musk, is in charge of one of those companies. And so I don't think that there will be that much juice there with the exception of TikTok, because that can be postured as a anti-China policy.

And so it's also worth noting, of course, because Vance does come from, this kind of Silicon Valley space, he, of course, has links to Peter Thiel, that I would not be surprised if the administration took a lighter hand on sort of the anti-tech policy in practice. I don't think that necessarily means it'll be a smooth sailing to that point. The nature of the Trump coalition such as it is that he has this ability to kind of represent a lot of different things to a lot of different people and that leads to fights.

And so I wouldn't be surprised if there are some kind of spasms as the GOP figures out what its posture is going to be toward American tech firms. But I would not be at all surprised to see a continued adversarial posture toward TikTok because it can be presented as this kind of foreign force. I think those undertones were always there, I would argue that they were there under the Biden administration, although much less so, but Trump really leaned into the sort of xenophobic rhetoric around TikTok the first time around, and I wouldn't be surprised to see that again.

Benjamin Wittes: Although he came out against getting rid of it, in over the last year.

Quinta Jurecic: Yeah, so there's all things to all people. Who knows, right? Who knows?

Benjamin Wittes: Kind of all over the place about this. Molly, you get the last word today.

Molly Reynolds: So I was gonna say that I think this is actually an example of a broader set of questions around which there is particular uncertainty, which are questions where the stated positions of Trump allies, and the stated positions of Trump himself are in conflict. So this is one example.

To use some examples from other policy areas, Taiwan, another example of this. Negotiating lower drug prices via Medicare, another example of this. And so like, as we think about kind of how things are likely to unfold, there are some questions where this difference, between the extent that Trump has fixed preferences that he talks about, that they are different than the ones that are held by people who are otherwise close to Trump, I think will sort of generate maximum uncertainty.

Benjamin Wittes: We are going to leave it there. Molly Reynolds, Quinta Jurecic, thank you both for joining us today.

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