Lawfare Daily: What Does a Second Trump Term Look Like?

[Intro]

Alan Z. Rozenshtein: So what we will see, likely with Trump in the second term, is a Trump unchained, who understands the levers of power, understands how to pull them, and who, again, most importantly, I think, doesn't have, or not going to have anyone around him who is going to do anything other than say yes and encourage him.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, Lawfare Editor in Chief with Lawfare Senior Editors Alan Rozenshtein, Scott Anderson, Anna Bower, and Quinta Jurecic in a live recording on November 6th.

Anna Bower: There are still people who are claiming that some of the down ballot races were rigged, that there still was fraud in this election, but I think that it will be very interesting to see, you know, this kind of so-called election integrity movement really holds on through to future elections.

Benjamin Wittes: We discussed what we may see in a second Trump administration in national security spheres now that he has won the 2024 presidential election and what we're watching for during the transition.

[Main Podcast]

I want to start with just the implications of this for the four criminal cases that are pending against Trump. Scott, get us started. You and I wrote an analysis of this issue about, I want to say, like, a year ago.

Scott R. Anderson: Almost exactly,

Benjamin Wittes: For the Democracy Fund, which we presented and then put on the Lawfare Podcast. How did we do? And what do we assume is going to happen now?

Scott R. Anderson: We don't know how we did yet because we'll have to wait until we get to January to know exactly what happens with these four cases.

But our operational thesis, with the understanding that this is pretty unprecedented territory and there's not a lot of hard law guiding it, is that once you get to the point where you have somebody who is being criminally prosecuted or has been convicted, and they become acting president, in particular, but perhaps president-elect to some degree as well, all of a sudden you have a real conflict of legal principles between the federal government drive to the fact that you need a functional and operational president and nothing about being indicted or being charged or convicted in any way disqualifies anyone for being president. In fact, it probably constitutionally cannot, except maybe if it was tied to Section Three of the 14th Amendment, which none of the statutes he's been charged or prosecuted under have been, are.

So, you end up with a system where you have to reconcile this need to have a federal presidential principle, that the president operational, functional. That can be in tension with state law and with other principles like the administration of justice.

Our kind of operating thesis at a high level—this is a long discussion, I encourage folks to check out, I think we've been retweeting it today and you can find, I think, from November of last year on YouTube and on the podcast, we did it on audio and in a video version—was essentially that the state charges are the more complicated ones.

The federal charges are likely to just go away. And we're already seeing reports that Jack Smith and the Justice Department are working to find a way to wind down those charges. There's a complication, the Mar a Lago case, because they particularly don't like the current ruling by Judge Cannon that gets rid of the matter on the basis of an Appointments Clause argument relating to Jack Smith's appointment. So they don't want to have precedent around that lingering around, although the district court opinion’s not precedent, but they don't want to have a bad opinion about that loitering around. But they still want to have an orderly wind down of those cases because the Justice Department has longstanding position that you can't prosecute a sitting president, and that would be consistent with that.

It also has reasons that they maybe want to do that prudentially, because it allows them to determine the terms under which it was negotiated down, they can make it clear that it wasn't dismissed without prejudice. So in theory, charges can be brought again in the future. Maybe they'll try and do something about how you would toll the statute of limitations of the situation, or at least lay down some markers there.

And there's a question of what happens with any reports special counsel may provide. If he does it under Garland, he'll be in a position to potentially disclose it to Congress or do whatever he will with it, more favorably than a new attorney general under a future Trump administration. So the federal charges are almost certainly going away, probably even before Trump assumes office.

The state charges, much more complicated. We don't one hundred percent know. Of course we have you know, a conviction in New York, pending charges in Georgia, and it's going to be a question about how the state authorities reconcile and to what extent they're compelled to reconcile by federal courts if it comes to that, the need to have an operational, functional president, a Trump who's able to do his job as president, which is going to be his job come January 20th midday, with the demands of the criminal justice system.

My suspicion is that means that whatever sentence he's going to get in New York is going to be either suspended or there'd be conditions under which he'll serve it that will allow him to be operational as president, may make it frankly, relatively easy to serve, maybe household confinement. But when you live in the White House and you fly on Air Force One, maybe that doesn't mean that much really.

On the Georgia context, it's going to be a question for prosecutors, for other state authorities, okay, to what extent does this, is this keep, still going? It's going to be, I think, a policy question for the judges, for the prosecutors, do we want to keep doing this? How do we manage the trial with the demands of the office of the presidency? And I suspect there's going to be a lot of pressure to find some sort of accommodationist path that will make the proceedings stop while Trump is president, if not go away entirely.

Co-defendants are still a question for all these. Obviously, there are codefendants in Georgia, codefendants in the Mar-a-Lago case, the federal case, probably still can be prosecuted. The federal charges in Mar-a-Lago can be pardoned by Trump when he assumes office as president, very well might be. I don't know how likely that is, but seems certainly plausible. State charges can't be pardoned. So we might wait to see, still see many codefendants charged in Georgia and those prosecutions continue, but we'll have to wait and see.

Benjamin Wittes: Quinta?

Quinta Jurecic:  Yeah, just a couple of points to, to flesh out what Scott said.

Let me start with the federal cases and then we can move to the state cases. So on the federal cases, I think it's worth noting that there's been some reporting floating around today that there's conversations between the special counsel's office and the Justice Department about whether to wind down the prosecutions of Trump in some way. It's hard to say, these are preliminary reports. I haven't seen the article set out. I know Scott touched on this.

I think what's important to point out there, is that I do wonder whether part of the reasoning here could be the ability to put forward a report that we know this attorney general would release because the special counsel's office is mandated to do such a thing under the regulations and there's no guarantee that a Trump attorney general would do such a thing.

In terms of what the options are for, you know, putting the cases on hold or something like that, my understanding after doing some digging today, is that in order to toll the statute of limitations, if the case were to be dismissed without prejudice, Trump would have to agree to that, which seems unlikely. So just flagging that and, and putting it on the table there.

When it comes to the state cases, I will say, I have no idea which one is up in Georgia. So I, Scott, I defer to you and of course to, to Anna there. When it comes to New York, I do think that one thing that is worth kind of keeping in mind here is to what extent, you know, all of this might affect Justice Merchan's decision making in addressing the immunity question, which he set to rule out on November 12th. And then Scott, as you pointed out the sentencing. I can imagine that if he was considering putting forward a sentence that would involve some kind of criminal confinement, that might seem less appealing now and you might instead go forward with some kind of fine or something like that.

But I do think we're very clearly in uncharted waters.

Benjamin Wittes: Yeah, so, Anna, and we're going to have a more extended conversation about these cases tomorrow, but Anna, just let's talk briefly about New York, because that one is scheduled for, a ruling from Justice Merchan next week on the immunity question and then sentencing, I forget how quickly after that, but soon. What do we know, if anything, about what is going to happen in that case now? Or should we just assume it will proceed as though the defendant had not just been elected president?

Anna Bower: I mean, I think that we're in uncharted territory here. I'm very curious to hear what Roger's thoughts are tomorrow when we talk about this a little bit more in depth. But, you know, it's interesting because I was listening to the presentation that you and Scott did on these different scenarios and you covered a scenario where Trump is maybe convicted in a state case and has been sentenced. But you didn’t cover…

Benjamin Wittes: But we didn't cover the one where he, you know, had been convicted and not yet sentenced. Scott, we left that one out.

Anna Bower: Exactly. And I, you know, I think it's clear that a state could not you know, sentence and then have a president in a state prison, you know, while he's the president. But I think that the other question is, you know, could it be that Justice Merchan, if he sentences Trump, could he do it to where, you know, it's something that doesn't involve confinement?

Is it going to be something that maybe is just held off until 2029, and what is the mechanism for doing that? So it's really unclear to me and curious for the thoughts of others, because I really think that we're just in uncharted territory here.

Benjamin Wittes: All right, let's leave that one there. We are going to return to this subject in much greater depth tomorrow, but we got a lot of other stuff to cover now. So we're assuming one way or another cases are going away, some before, some after, some will get put, just put on hold, dry iced, and we'll talk specifically about Georgia tomorrow.

Alan, rule of law, what do you make of it? Do we still have it? Are we going to still have it? What does a second Trump term mean for the good ol’ rule of law?

Alan Z. Rozenshtein: I don't think it's going to be great. Say what you will about all the scandals and disasters of Trump's first term, there's no question that for at least much of it, he was surrounded by people that, whether out of real conviction or self-preservation or baseline competence, tried to insulate him from his worst impulses. Those people were either fired, or left. Many of those people, especially in the military, spent the last several months very publicly calling Trump a fascist, which suggests that they are not going to be invited back into a second Trump administration.

So what we will see, likely with Trump in the second term, is a kind of Trump unchained, who understands the levers of power, understands how to pull them, is very angry at what he feels was the stymieing that he received by members of his own team, by the quote unquote Deep State, who is quite ambitious and who, again, most importantly, I think, doesn't have, or not going to have anyone around him who is going to do anything other than say yes and encourage him, right?

He's not going to have a Milley. He's not going to have a Pence, right? Who, for all his faults, did ultimately come through when it came to certifying the Electoral College vote in 2020, or 2021 as it were.

And unfortunately, and this is something that you pointed out, Ben, in your great piece today in Lawfare, Trump doesn't actually have to actually break the law to eliminate much of what we think of as the rule of law in this country. Because so much of it is a matter of norms. The fact that historically, DOJ has enjoyed quite a great deal of independence from the White House is almost certainly not a requirement of the Constitution. It's almost certainly not something that can be enforced in any meaningful way by Congress. It is entirely a practice of good governance and of voluntary acceptance by presidents and attorney generals, either again because of conviction, or maybe more crassly, because of concerns of political blowback, you know, as Nixon experienced.

But Trump certainly has no such convictions, and Congress, which increasingly looks like it will be Republican controlled, and largely purged of any non Trump, non-MAGA elements, will likely abet all of Trump's worst instincts. And so what we are potentially looking at is perhaps even worse than illegality, but the destruction of rule of law by purely legal means. And that's something that's very, very hard to put back together. Because at least where there's an illegality, you can do things like indict people, or at least point to illegality.

But where the rule of law is taken apart by legal means, it's very hard to know what to do at that point. Because after all, what are you supposed to say? It's legal, right? It's just going to be very awkward, for those of us who are going to spend the next four years watching Trump. I mean, what are we going to say when Trump directs the attorney general to prosecute someone? We're going to say it's a violation of norms, and it's going to be. But in a day, it's probably going to be legal. And that's just not a great position from which to try to limit Trump's worst excesses.

Now, again, I'm not saying all of it's going to be legal. There's going to be plenty of illegality as well. But the legal stuff, again, as Ben, you pointed out today, is maybe even more dangerous.

Benjamin Wittes: Quinta?

Quinta Jurecic: I think the other point that it's important to make here is that to think about who is responsible for determining legality and illegality, by which I mean the courts. Well, I would ultimately, I would take a departmentalist view, but for the purposes of this conversation, let's say the courts.

We have a judiciary that was tilted sharply to the right under Trump. Obviously, Biden also appointed a pretty staggering number of judges as well, but the appellate courts Trump has really left his stamp on, and of course the Supreme Court. And I think we've seen indications from the Supreme Court, most notably in the immunity decision, that the Court is really inclined to give Trump a pass, I would say, in a lot of ways that previously I would have expected the court to check him.

I don't want to say that, you know, the Court, John Roberts was out there, you know, wearing a pussy hat and waving a resistance sign, but during the first term, there were, I think it's fair to say there were instances where the incentives that sort of governed the conservative legal movement were not in line with Trumpism, where we saw pushback from the conservative justices. And I think that we are less likely to see that this time around for two reasons.

One is that, to some extent, Trump and his allies have become better at kind of dotting the i’s and crossing the t’s, which is a lot of what got them in trouble last time with the travel ban, for example, with the rescission of DACA. I think they know their way around the Administrative Procedure Act a little better this time, although who knows.

And then the other thing is that, you know, I think that the courts are going to be more sympathetic to them and that that is worth keeping in mind as well. That the sort of the question of, you know, things on the edge, I am less confident than I would have been and I wouldn't have been confident previously, that the Supreme Court would have much of an interest in checking abuses. I don't wanna make too much of a blanket statement because I do think that there are areas where the conservative legal movement and, sort of, Trumpism, whatever that is, are at cross purposes where we could see pushback. But after what we saw in the immunity ruling, I'm really hesitant to turn to the courts and the Supreme Court as a actor that would help maintain what we mean when we talk about the rule of law.

I should also say one more thing. If the Republicans take the House, they will have a very narrow majority, like an extremely narrow majority. And this has not been a caucus that has been historically organized, I would say, in recent years. So, it is worth, I think that may limit the amount that Trump is able to kind of, you know, if we're thinking about abuses of the rule of law in terms of pushing things through Congress, that may limit what he's able to push through.

Of course, when we're talking about congressional oversight, it only really matters if you have a majority because then that determines, you know, who's in charge of the committee. But I do think that's worth noting.

Scott R. Anderson: Yeah, so I want to note just a little bit of a contrarian instinct on this line which I think has been the contrarian, or the conventional wisdom that we are preparing for Trump 2.0 which is you know, Trump, supercharged,  Trump without, that's all the malevolence without any of the, you know, incompetence, to borrow and paraphrase and abuse one of Quinta and Ben's lines from the last Trump administration, for a couple reasons.

One, there are lots of very competent Republicans who served in the first Trump administration. More competent, deeper bench. That's part of the reason you had more conventional people. Yes, those are some people who were forced out, but they knew how to do things like the APA and advance a lot of policy agendas. There were errors that were made, part of that is cause of the internal processing at the White House and at agencies. Some of that was because some of these things are just hard to do and the APA is designed to slow down or acquire reasoning and require assessment and opinions and things like that.

Like there's a lot of reasons why these came around. It wasn't just because these were a bunch of people who were incompetents executing the stuff left and right. There's friction built into the system that we were seeing, and that's hard to avoid. That's not going to change this time, especially because we are dealing as well with federal judiciary, particularly at D.C. Circuit, on the administrative side, that has a lot of Biden appointees now. I think Biden surpassed Trump's number of appointees recently. I know he's closing in on the target as of late September. So that's one reason to be, I think, a little bit skeptical of the idea that we are facing a supercharged Trump 2.0.

The other part is just Trump himself. Big reason Trump's policies were not routinely implemented cause the gentleman himself lacks focus. He doesn't have a strong policy agenda. He is committed to very unorthodox, strange decision-making processes that lead to very difficult policy execution. That has not changed. We know that hasn't changed because we saw it over and over again in his campaign. Look at the process he used to select his vice presidential running mate. The most consequential decision he probably made over the course of his campaign. And it was apparently like a hip check decision that he made at the last minute, surprising everyone involved because his son said, hey, I think JD is pretty cool. I mean, that was, that is not far off from the actual description of the inside reporting. So I will believe this is a wildly more efficient Trump than I see it.

The third point I would make about the loyalist point, I do think there's a lot of reality that you're going to get people who are more loyalist, more on the Trump agenda, perhaps than before. But we thought that about some people who actually did step up towards the end of the Trump administration. Think about Mark Esper. Like we all thought Mark Esper came in, to be somebod…

Benjamin Wittes: Or Mike Pence.

Scott R. Anderson: Or Mike Pence for that matter. Yeah. Well, setting that aside, that extraordinary circumstance aside, that Mark Esper is somebody who really, when he came in, we all assumed he was just a rubber stamp. coming in to replace General Mattis as Secretary of Defense. And we're all very concerned about it.

And Mark Esper showed he had a lot of gumption and guts when it came around domestic deployment. Cost him his job, ultimately, and his relationship with Trump. But that's notable. Are you going to face the same pressures in the Senate to get those people confirmed? Like, I kind of doubt it a little bit.

I think the Senate is a little more ideologically on board with Trump. But, you know, it is, I don't think that means you're going to get a bunch of people who will automatically be the most blank checky because those people aren't even remotely credible. And I think Senate Republicans are going to want somebody who's at least remotely credible in most of these roles.

That doesn't mean that they're not going to back a lot of Trump's agenda. They will, and they'll do so effectively, but there are going to be, I think, still guardrails that the lines that they may or may not cross, or at least will push back against, hopefully. I don't know. Maybe I'm being optimistic.

The final point I want to say is on legislation, there's still a filibuster. And that means most of what the Republicans can do will be through reconciliation which is a, limits the substantive scope to things that are basically budgetary in nature. It's broad, it's been ironed up, and I guess they could always go for the nuclear option to ditch the filibuster, but they don't seem super inclined to do it.

Thune, Cornyn. Gosh, what's his name, the guy from Wyoming?

Benjamin Wittes: Barrasso.

Scott R. Anderson: Thank you, Barrasso. The leading candidates for the new, kind of, leadership in the Senate on the Republican side are mostly pretty conventional Senate Republicans, Cornyn and Thune in particular. I know less about Barrasso, but I think my understanding is that they're the ones who are tentatively the favorites. And so I don't think you're going to see a lot of enthusiasm about getting rid of the filibuster, just as you saw McConnell push back on it.

So all these amounts to something, I do think it's going to be a little more efficient Trump 2.0 this time around. I think you'll see a little more efficiency, a little more hit the ground running, but I don't think it's gonna be that dramatically different from last time, I, at least I think that's my presumption. Maybe I'll be disappointed and surprised, but I'm not ready to write it off quite yet.

Benjamin Wittes: All right, that's the most encouraging thing we've had on any subject so far, and I would just like to foot stomp it a little bit, which is not to say I'm confident I agree with it, but I'm not confident that it's wrong either.

One of the things about having less confident people available is that getting things done with them is harder, even if they're more fanatical. And I do think that there's a dearth of people in, particularly in the security agency spaces, who kind of know their way around the relevant buildings. And some of them may have trouble getting confirmed even through a Republican Senate. So I'm kind of hopeful that a certain degree of incompetence will still temper the malevolence but you know, we will not know that until we see it.

Scott, we are gonna so, because you may have to jump off on the early side, I want to jump to a subject that you are better positioned than the rest of us to address, which is the area where Trump really has the freest hand, which is to say foreign policy and the ability to, you know, fix the Ukraine-Russia situation in 24 hours without even taking office, blow up NATO, and of course, extinguish Iran from the face of the earth. What do we know, or what can we reasonably say about what is bluster and what we actually expect to happen?

Scott R. Anderson: So it's hard to know in all honesty. Because we've seen Trump's foreign policy, kind of agenda be quite a moving target, honestly, particularly even over his first term and over the course of this campaign and particularly in the last few weeks or months, we've seen a very politically driven shift towards talking up prospects of peace, anti-conflict, you know, bringing the Gaza war to a close, Ukraine war to a close, without any real clear plans for it, but insisting that's how, differentiating himself from the Biden administration and from Vice President Harris on those grounds. So who knows how much of that is going to feed into the trajectory.

I think we think we do know that will be a little different is, you know, foundationally, the biggest national security priority, which is strategic competition with China, there's broad agreement on, and that's not going to change. Russia, obviously a very different approach there. I don't think actually the foundational underlying assumption about them being competitors is not the same, for most people in the party. Trump himself, sometimes that's a little complicated. But they certainly have a very different tack than the Biden administration took, in part because I think most people around Trump think China is a much bigger concern. So, how we'll see that play out is a little complicated.

Ukraine is very much a wait and see. We have to bear in mind there's real diversity of views on Ukraine that have been expressed by people around Trump in a lot of different stripes. We saw a Wall Street Journal op-ed co-authored by former Secretary of State Mike Pompeo and another senior, former senior administration official whose name's escaping me at the moment come out this past summer that laid out a kind of peace plan for Ukraine that still entailed substantial support for Ukraine while easing them towards negotiations.

That is something that's a different tenor and explicitness than the Biden administration has approached. But I think it is something that even the Biden administration is moving towards now because the conflict has become very difficult. And that's a trajectory that's not that different perhaps than others would pursue.

But there's also the risk that you will see people follow some of Vice President, future Vice President Vance's statements and, you know, withhold assistance altogether. So we'll have to wait and see on that. I think at least in the short term, you're likely to see a Wall Street Journal op-ed type approach because that was talked up so much in the late phase of the campaign. And then we'll just see a question of how much commitment that will stay to that over time.

Gaza, an area we're going to see a huge difference. There's a foundational difference in how the two parties view the Israel-Palestinian conflict. Democratic Party is very still committed to a two-state solution. It's in the party platform at length in detail. Republicans do not talk about it. You have former ambassador of the United States to Israel has signed off on a plan that would essentially allow Israelis to exercise control for Palestinians and not give Palestinians, incorporate Palestinians into an Israeli state without giving them a full bundle of rights, right?

That's not the administration's position yet but it might be. If nothing else, we just don't see the administration willing to, you know, really rein in the Israelis on day-to-day management of the Palestinians. They have, Trump has come out and said, I want an end to the war by January to Netanyahu somewhat publicly. I suspect that's more of a political stance than an actual hard policy line, but he'll want to see some sort of symbolic thing that will lead to that sort of conclusion. But the end of the conflict might be the annexation of the Gaza Strip or the northern half of it by the Netanyahu government, which is something that they very well might be kind of setting the ground for this week.

The other issue is alliances. I think this is at one of difference, not a difference in substance to some extent. Certainly in Asia, both groups, both parties seem to really appreciate the importance of developing alliances there. It was something that an effort was made under the Trump administration to some extent, but Trump's, his personal involvement complicated things because he has such a transactional vision of these alliances and particularly defense treaties.

North Atlantic Treaty, NATO, we know it's come under direct criticism for him. It will be a pain point to some extent, particularly because it's so implicated by Ukraine. NATO has broad bipartisan support. There's no doubt about that. He would face a lot of pushback from Congress within his own party and others within his own party if he were to ditch NATO altogether. But that doesn't mean he won't threaten to do so, use so to gain more leverage.

And of course, Congress has enacted a provision that would enable a legal challenge if he did try and withdraw without its permission that could lead to a big legal fight if he were to try and do it. That doesn't mean though that he can't just simply refuse to come to the assistance of an ally because he is the commander-in-chief and that's within his authority. So, there's a question about undermining the credibility of these relationships.

My guess is that at least, you know, the alliance are going to stay there, certainly in the medium term. They're going to continue to be a policy priority nominally. But the actual commitment to advancing them is going to be complicated by Trump's idiosyncratic approach to those sorts of relationships. And frankly, just less institutional, administrative commitment. It was a super high priority for the Biden administration. I just not sure that will be the case for a future Trump administration.

Anything I missed that you wanted to touch on?

Anna Bower: Well, I did want to touch on actually a little bit. You mentioned, Scott, your thoughts on the conflict in Ukraine, but I wanted to go to Ben to see if I could ask him for his thoughts, because that is obviously an issue area that he's had a special interest and proximity to. So Ben, what do you think we can expect with the conflict in Ukraine when it comes to the Trump administration?

Benjamin Wittes: Well, there's really two possibilities, and the way I'm going to formulate them, I think, makes clear, which I think is likelier. I would love to be wrong. The first possibility is that everything Trump has ever said and done on this issue is a giant headfake or he will change his mind. And he sees an opportunity to be, you know, sort of the hero of Ukraine, and amps things up, right?

The second possibility is that it isn't all a lie. He's genuinely suspicious of the Ukrainians for all kinds of reasons that have to do with the 2016 election. His pathologies in that regard got him impeached once and he has a vendetta and he's actually personally fond of Vladimir Putin, as he clearly mentions whenever given the chance, and so I think we should all operate with the assumption that he is going to, or at least that there is a very substantial risk that he will sell out the Ukrainians early and quickly and do it with a certain amount of pride.

There are a couple of things that are, couple caveats to that. The first is that the Trump administration was much less bad on the subject of Ukraine and Russia than Trump was. And remember, the Trump administration was the period in which we really started providing a lot of lethal support to the Ukrainian military. And Congress actually, after the 2016 election interference, imposed some nontrivial sanctions on Russia.

And so there's always a legitimate question when you're dealing with a Trump administration on this issue, what the difference is between his instincts and statements, right, and then what the administration does. This goes a little bit to Scott's point. So I think you could see a situation in which he says all kinds of irresponsible things but the people that he appoints to be Secretary of State and Secretary of Defense actually behave a little bit more like sane people.

And then the final thing that I'll just add about it is that, you know, the Senate, the traditional Republican Senate leadership, Mitch McConnell, who's outgoing, of course, is very good on this issue and, and is pretty clear eyed about it and has been, you know, effective. And so I do think, you know, depending on who the Senate leadership is, and depending on the constellation of forces in the Republican Party in the Senate and who controls the House, you could have a somewhat different constellation of power. Which of course would affect, not administration policy, but things like appropriations, which in the case of Ukraine, which requires an annual or semi-annual you know, supplemental, these are very important things too.

And so I would say I think it is very likely to be very bad, but there are rays of hope in it. And look, the Ukrainians have played it smart. They hired Kellyanne Conway as a lobbyist a few months ago, and you know, they're working all the right angles. And I think all we can do is, you know, keep making noise about it and, you know, keep emphasizing the importance of the issue.

Before we go to audience questions Alan, I want to turn to you about something that, you know, has been circulating, which is a lot of people are very upset at the decisiveness of Trump's win and the fact that he, you know, appears to have won the popular vote as well as the electoral vote, which is of course something that most Republicans have not been able to pull off recently. And you seem to have a somewhat different view of this from a democracy protection point of view. And I'm interested to hear your thoughts.

Alan Z. Rozenshtein: Yeah, so let me first say I think it is bad for democracy that Donald Trump was elected. That is my hot take for the day. Thank you all for coming to my TED Talk. I think it is very bad, and I am extremely concerned.

I think there is a silver lining here. It is a thin one, but it exists, and that is while it is very bad for Donald Trump to ever be in the White House, it is absolutely necessary for democracy to exist in the United States for the major, for both of the major parties to be able to contest elections and win them fair and square on the merits with fairly decisive electoral, and given the reality of the sort of political legitimacy, popular vote totals.

And so if Trump has to win, which he has, it's actually much better that he win in a somewhat decisive way, and in particular, and this is what I care about, actually, more than just the popular vote total, that he win with what appears to be, we'll have to wait for some weeks and months while the post-election kind of voter analysis is done.

But it appears that he won with the most diverse, racially diverse coalition that Republicans have had in modern, certainly in modern history. A massive swing of Latinos to Trump, a very substantial swing of Black voters and Asian voters. And also while it seems that women voted for Harris over Trump that the gender gap in this election was not unusually large, which means that a lot of women voted for Donald Trump. And I think the reason this is important is that it's a pretty compelling literature and political science that suggests that one of the most important ingredients to having a successful long-term democracy is the buy in of the conservative movements in that democracy.

And when it appeared that the Republican Party was gonna stay the party of, sort of white voters, that's extremely dangerous. Because even though that would mean that they would over time lose their ability to win majorities as the country becomes less white, they would potentially continue to take more and more anti-democratic steps to stay in power.

Whereas if you have a more racially depolarized electorate, that is just generally a good thing for American democracy, given that cleavages over race have historically been the most dangerous cleavages in American democracy. We have fought a civil war over it. We had a hundred years of apartheid in the South over it, right? To depolarize, racially, our elections is, in the long term, extremely good and extremely important.

Two years ago for the Rational Security: “Hot Takes” Edition, this was my prediction. That, you know, if American democracy is going to be saved in the long term, it's going to be because of a socially conservative, multiracial coalition. We appear to have that, and that I am, in my own sort of odd way, glad for.

Now what that does not do, and I want to be extremely clear, what that does not do, that does not assuage any of my concerns over the next four years. So if we can get through the Trump period and get back to just normal-ish fights between Republicans and Democrats that are fought on culture issues, policy, their mean, their whatever, where each side can contest meaningfully the kind of, multiethnic majority of the country, I will feel much, much better. But that assumes we can get to the next four years of Trump, which is why this is a very thin silver lining in what is still, to me, an extremely dark cloud.

Benjamin Wittes: All right, we are going to go to audience questions, and we're going to start with the anonymous attendee who, whether that is one person or several, has a number of questions today.

“Very interested to hear what the Biden administration can do in the next few months to provide as much support to Ukraine as possible before the tap gets cut off.”

I have a few thoughts on this. Scott may have others. So, the first thing is that there is a fairly large amount of appropriated money that has not yet been delivered in the form of military hardware. And of course, the first thing that the administration could do is accelerate that and obligate all of it as quickly as possible. Now, I don't know what the bureaucratic roadblocks to that are, but there is outstanding appropriated funds. And the Ukrainians have actually been complaining about how slow the administration has been to aid it, to provide it. And so that is an available thing to the extent that you can accelerate it.

The second thing, of course, is that the other thing the Ukrainians are, have been complaining about is the restrictions on the use of the aid that they do get, which is to say you know, they're not allowed to use long-range capacity into Russia except under certain circumstances. And so this may be an opportunity in which, a moment in which the Biden administration comes to the view that you know, it’s, this may be the Ukrainians last chance to make real progress, so let's give them that chance. That, of course, raises the Biden administration's larger concerns about escalation with the Russians.

Those are the two things that immediately come to my mind. The last thing would be that, you know, people don't, people don’t really understand this, how much time the Biden administration has spent going around the world finding supplies for the Ukrainians in, you know, different countries’ military hardware repositories.

But one thing I suppose they could do to the extent they haven't exhausted that is more of that and getting, really leaning on other countries in these last few months to make commitments. I think that's probably a mostly exhausted source at this point. But, you know, South Korea is really pissed off that there are North Koreans there. They could produce, you know, some more artillery shells.

Oh, Scott, do you have thoughts on this?

Scott R. Anderson: Just three quick additions to that. One, there are authorities in the NDAA coming forward that are going to extend the availability of available funds for additional fiscal years. So, far as there is a remaining funds, there's a broader window to spend them in.

Two, there was a mechanism in the Ukraine Security Assistance Initiative last year's NAA. I actually could not, I need to go back and look to see whether it's still in this one that allowed for outside funding to come in. I'm assuming this is so that allies could fund basically acquisitions through U.S. arms sales programs that usually have to come from U.S. assistance. I'm not 100 percent sure why this mechanism isn't there, but it opens the possibility that European allies, for example, could give a bunch of money that could fund types of military equipment only the United States has available to it or can produce under its contract. So that's an available option that would be budget-neutral, although it'd still be a policy choice to allow it to happen.

Third, as I wrote about in Lawfare back in June, there's a plan to give Ukraine a $50 billion, essentially, advance on different types of windfall profits that are, from windfall profits that are generating in Euroclear and other kind of transactions, entities involved in financial transactions based off frozen Russian assets.

And so this plan is desperately being finalized by the Biden administration and  Europeans. I think it looks like it's going to go through by the time Biden leaves office and so that would be a surge of additional cash and funding for the Ukrainians that's kind of leveraged against eventual payouts from the Russians based off out of their frozen assets for violations of international law and things like that.

Benjamin Wittes: All right. Laura Donna. The floor is yours.

Audience Member (Laura Donna): What can we expect to be the range of things that might happen to elections in two years or four years?

Benjamin Wittes: Can you be a little more specific about what you mean by that?

Audience Member (Laura Donna): Sure, the Electoral College is not perfect, but I think we've come to expect that state and federal and local elections go a certain way with a certain process. And I'm wondering how that might change in a lawless regime.

Benjamin Wittes: All right. Well, let me take an initial crack at that and then if others have thoughts, just jump in when I'm done.

So, the first thing I will note is that the rules of election administration are made by the states, not by the federal government with a certain amount of federal standard setting oversight. And so for, an administration would have to be not just a little bit lawless, but very lawless to you know, kind of, really interfere in, in state level elections, including for federal office. That is one of the democracy-protective features of divided sovereignty that, you know.

And so, that said, there are things that particularly a Republican Congress has tried to do in the past that, you know, people think are vote suppressive, like requiring you know, having sort of extra precautions to make sure that non citizens don't try to vote or can't vote and the worry, of course, is that you discourage a lot of citizens from voting too.

Look, if we're at the point two years from now where we're worried about whether an election, a midterm election, is going to happen, we're going to be in a very bad place. I think the risks are more, in terms of creating environments in which it is hard to run as a candidate, you know, hostile, dangerous environments for political opponents, then it is that you would actually interfere with an election. Scott, do you have thoughts on this?

Scott R. Anderson: Yeah, I do. I had a long piece that I recommend reading if you're really interested that came out on election day that goes through a deep dive of the whole electoral vote counting and selection process that was reinforced in 2022 by the Electoral Count Reform Act.

Those reforms did a very good job. And they stopped, they made it very hard to interfere, as long as a majority of both chambers of Congress don't try and buck the rules as written. And that, their ability to do so, or at least arguably do so, is kind of baked into our constitutional system. That's a hard way to avoid.

Benjamin Wittes: But, wait, I took Laura's question to be about the midterm. She said two years from now.

Scott R. Anderson: About two and four years, but I'm getting to that in a second as well. So on a presidential election part in regards to selecting electors I think they're pretty well reinforced. There are still vulnerabilities you can't entirely get away from with our constitutional system. I think it's now much easier for a disgruntled majority of one chamber for example derail the process entirely than it is to curb it in one particular direction towards one victor which is different from 2020.

Midterm elections and more general elections at the state level where they're actually administered, I think we should take a lot of heart from the fact that yesterday's elections actually went off pretty smoothly. Little incidents of, you know, bombing threats, which I don't want to minimize, but proved to be not substantive. Little incidents here and there. We, of course, had the firebombing of a ballot drop post, but not really of a scale that different from prior years.

And the thing to bear in mind is, going into this, even former President Trump and his supporters, and everybody, Kamala Harris and her supporters, all thought this was a razor-thin margins. The incentive to do things to manipulate the outcome on election day was at its all time high, because the impression going in is that could have been much more consequential. The actual margins, none of that stuff would have mattered. And that's why we're not going to see election disputes actually played out, even though there could be some, you know, in theory, out there.

And so the fact that nobody really seemed to find a way to do it, I think is telling. And to build off of Alan's note, a really interesting and frankly, very positive of his last election is that Republicans embrace the early vote. They embrace the idea that everyone can vote early. That's because they think they are now competing for majority votes, and they need to mobilize people. That's a good philosophical bent, you know.

Democrats also want to keep competing and hopefully keep trying to compete with these people, but it means that you're more open to at least types of opening ballot access. I don't think we should pretend to go so far. There will still be debates around that, particularly around citizenship, things like that. But embracing early vote is great on a lot of different fronts, and the fact that the GOP has moved in that direction so distinctly, such a departure from 2020, hopefully might be a sign that insofar as they see themselves competing for popular vote, they may be open, more open to shifting towards more open access to ballots on other measures as well.

Anna Bower: I will add that I'm very curious to see over the next four years what happens with the dominant narrative within the MAGA movement that American elections are rigged. This, of course, has become more mainstreamed into the Republican Party since 2020 and since Trump has been trumpeting these claims of stolen elections.

I've been trying to track how people who have said that our elections are rigged can reconcile with the fact that their candidate that they support just won the election. There are still people who are claiming that some of the down ballot races were rigged, that there still was fraud in this election.

But I think that it will be very interesting to see, you know, whether this kind of so-called election integrity movement really holds on through to future elections. Of course, it has, I think, in many ways, been beneficial because it, for conservatives, because it has led to legislation that they wanted to get through in states like Georgia SB 202 that passed after the 2020 election, that, you know, made it more difficult, for example, to get a mail-in ballot so there were kind of policy aims that were able to be accomplished through or with aid of this kind of election integrity narrative or angle.

So I, you know, I'm just curious to see how that goes as we move forward, and I don't know if anyone else has thoughts on that, but I just wanted to kind of point that out.

Benjamin Wittes: Quinta, Alan, are either of you, do either of you have thoughts on your confidence level that there will be an election two, a free and fair election two and four years from now?

Alan Z. Rozenshtein: I mean, I will mostly, sort of, reiterate the points that previous folks have made that I think that, I mean, interfering with an election is very difficult because of how decentralized things are in the United States.

And also, I think that, you know, with any luck, Trump will leave the stage in 4 years. I don't see any reason to think that either he or the Republicans will try to overturn the two-term constitutional amendment limit. And again, hopefully the Republicans feel confident enough in their ability to win majorities that we can go back to just having normal elections.

Benjamin Wittes: All right, Josh asks: what will be the effect on civil cases? This one has a very simple answer, which is none, because the Supreme Court ruled in the Clinton v. Jones case that the president is not temporarily immune from civil liability. or civil lawsuits. This was, of course, a federal lawsuit in that case, whereas the ongoing cases are civil.

But those cases, remember, have already been decided and are on appeal by Trump. And so it is him that is now asking the court for appellate review and seems likely to win on at least one of them. So I don't see the, any likelihood that the civil cases will be interfered with.

Anonymous attendee asks, can DOJ indict and prosecute without going before a grand jury? Answer, no.

Anonymous attendee also asked: what is the future of U S. membership in NATO? Even if Congress has to approve withdrawal, how much can Trump do that effectively nullifies U.S. participation? So Scott, this one has your name all over it.

Scott R. Anderson: Yeah, I covered this a little bit already. But just to reiterate, you know, the North Atlantic Treaty Organization, a treaty-based body, and it covers a bunch of stuff. But the foundational element is a mutual defense commitment that the United States says, we're going to back up people, and that's why it supposedly has a deterrent effect to protect our allies.

That is something that is almost entirely within President Trump's control, even if we remain a party of the treaty. He's the commander-in-chief. It is hard to imagine any way that Congress or the Supreme Court or any other branch could command him to use the military in a certain way. That is just not how that authority has been interpreted. So there is nothing we can do to force him to back up that commitment.

Exiting NATO, as he threatened to do in the past is something that presidents have traditionally been able to do in this century, although historical practice is much muddier. But Congress did enact a statutory provision that I've written about at length in Lawfare a couple of times. I encourage you to look back at that if you're curious. That is designed to set up a legal challenge.

Basically, if Trump tries to withdraw from NATO, I think he's going to have to fight it all the way to the Supreme Court, whether he can actually do it or not. And I'm not sure that's a fight he will win. I'm also not sure he will lose. It's a genuinely open legal question. But I don't think it's a fight the executive branch really wants to have. Especially because in the end, Trump doesn't have to do anything under NATO that he doesn't want to do.

But staying a member of NATO would mean you're still part of the NATO organization, all our interoperability, all the organizations, the coordination we do, a lot of the relationships will still be in place, meaning a future president will still be in a position to take advantage of it and is not going to have to go back to the Senate to try and get another treaty with two-thirds advice and consent, which is a high threshold, very hard to do these days.

Benjamin Wittes: Alex Manevich, the floor is yours.

Audience Member 2:  So my question was simply whether you had any educated guesses on what the Trump administration would mean for the current Israel-Hamas-Hezbollah-Houthi-Iran, etc. conflict. Particularly given that both a big majority of Israelis and a narrow majority of Arab-Americans seem to support Trump. So one of them must be wrong.

Benjamin Wittes: Yeah, so I think Scott covered this a little bit before. But I think the broad answer is it portends a very free hand for the Israelis. The Biden administration has meant a kind of operational freehand with a lot of threat-ing from the United States and occasional interventions to rein the Israelis in. I think you can expect that to go away.

The Gaza operation is mostly done, and I take the firing of the defense minister yesterday to be really about how almost or mostly it means. That is, Bibi wants to do more and I think Gallant kind of wanted to bring it to a close. It's not clear to me how close Lebanon is to being done. As to the Houthis, that's not up to the Israelis. The Israelis will keep hitting the Houthis as long as the Houthis keep hitting them. And they're trying to establish some deterrence.

The Israelis have clearly made a decision to wipe out Hezbollah as much as they can, and to get a lot of that done. Biden is not stopping them. Trump will not stop them either. So I think that's probably not very different depending on the answer to, depending on the change of administration. Where it is different is Iran and Gaza, if that is still going on. Scott, do you agree with that?

Scott R. Anderson: I do. Only two things I would briefly add.

With the Houthis, the Biden administration has really leaned against the edges of what previously we thought the president would do war powers-wise. Basically, he's blown past the 60-90 day War Powers Resolution timeline on some like, a kind of, you know, cluster of, like, mediocre explanations, at best. So in terms of direct U.S. involvement, that's a situation where we have direct ongoing U.S. involvement. And the Trump administration provides a pretty free hand to pursue it further up until like ground troops or something much more dramatic that's frankly is just not in the cards.

When it comes to specifically Iran, it's worth noting the regional dynamics are really different this time than the first Trump administration. First Trump administration's Iran and the Gulf states were really at loggerheads. The Gulf states really seem to be pushing for military action against Iran and certainly the kind of, like, amped up sanctions regime. Iran and the Gulf States have been in a rapprochement, mostly driven by Gaza, for the last few months.

We have direct diplomatic exchanges, much more friendly tenor, and frankly, the Gulf states have kind of just ratcheted down their hostility across the board. Maybe it will come back, we don't really know, but I do think that suggests the conditions may not be quite there, at least at the moment, to do something really aggressive against Iran. That could change, though, and there certainly are figures in the, likely figures in the future Trump administration are very hawkish on Iran and supported military action on limited pretext in the past.

Benjamin Wittes: Although the person who was most noted for that was John Bolton, who of course came out very strongly against Trump, and Trump kind of, now derides as somebody who wanted a war with Iran, implying that Trump is, you know, not necessarily interested in that.

John Gaudette, the floor is yours.

Audience Member 3: Thank you. I was wondering what we look for going forward with the Trump administration. Is it major policy moves like leaving NATO or is he going to implement new knowledge about how the government works to change the civil service or come up with new OLC opinions?

Benjamin Wittes: ¿Por que no los dos? I mean one thing about an executive branch is you can do all of a lot of things at the same time. Why are you framing the question as an either or?

Audience Member: Fair enough. Maybe which is more likely?

Alan Z. Rozenshtein: I mean, again, to echo Ben, why not both? I mean, I think we're going to learn a lot over the next several months as the transition picks up steam and we learn about who personnel is.

I think it's going to tell us enormously, right? I mean, you know, if Christopher Ruffo was the new Secretary of Education, you know, we're going to know something about the priorities of the Department of Education. And if RFK Jr. is the new HHS secretary. That's going to tell us things. So I think we're going to learn we're going to learn a lot in that sense.

Benjamin Wittes: And I think we're also going to learn, there is one thing about which Trump has been exceptionally consistent about his day one priority, and that is a major immigration roundup. What he calls mass deportations, which there may be resource limitations on how mass that could be, but there's not a lot of legal limitations on your ability to deport people who are not lawfully here.

And so you could change, you know, I do think just as the travel ban was the gigantic story of the first week of the first Trump administration, a major immigration roundup of a sort that we have not seen before, is it at least aspirationally the major policy promise of the first week.

Anna Bower: What about pardoning the Jan Sixers?

Benjamin Wittes: I think you have to assume it's going to happen. I mean, he has promised it repeatedly. He never says quite, I am going to pardon the January Sixers, but he says, we're going to, I'm going to deal fairly. We're going to, we're going to deal fairly with the January Six people who he calls hostages. And he very explicitly doesn't take pardons off the table. So I think you should expect pardons.

Quinta, do you disagree with that?

Quinta Jurecic: No, absolutely not. I'm fully expecting pardons, which, by the way, I should say, puts a lot of pressure on the states that have been investigating these things. They haven't charged the rioters at the Capitol, but there are state prosecutions with fake electors going on. And I do think it will be very interesting to watch what that looks like going forward, and if state attorneys general decide to expand those prosecutions or bring new ones.

Benjamin Wittes: Yeah, I think that's a really good, really important point. We have a bunch of resources on those state cases against fake electors that Quinta and one of our student contributors has written, as well as voluminous Roger Parloff coverage of the J6 cases. There is one other, two other important pardon areas to watch for.

One is the co-defendants in the Mar a Lago case. I think you can look for those pardons to be right away. Trump can't, it's not that easy for Trump to make his own case go away, although Jack Smith may do it for him. It is very easy for him to make the co defendants cases go away and I assume he will do that.

All right, we have, we're gonna do the rest of the questions rapid fire-style.

How much can Trump do to military leadership to stack the armed forces with avowed loyalists? Answer, short answer, complicated question. Short answer is that he can, the promotions process in the military is mostly by merit.

But the president can hold things up as he did to prevent Alex Vindman from becoming a full colonel. And so the answer is, you know, he has to care enough to get involved. But if you care enough to get involved, he is the commander in chief. And it's a little bit like the civil service question, which is how much does he care enough to do it? And does he care enough that it becomes uncomfortable to be a military officer who's not willing to, who’s willing to stand up to him the way General Milley did.

Next question: in the wake of the coming Trump presidency, how serious are the threats from Russia toward the Balkans and Finland—I assume the questioner means the Baltics and Finland—and under what conditions will NATO membership remain a deterrent to Russian aggression?

So a couple things about this. Scott, if you have thoughts, jump in. The major deterrent from Finland is the quality of the Finnish military which is, you know, it is extremely professional, capable, it has some very unusual capabilities, and, you know, they have been preparing for a war with Russia, another war with Russia, because they fought one against the Soviets during World War II, several against the Soviets. They are a member of NATO. If the NATO security umbrella collapses, I don't think they are the first target. I think Poland and the Baltics are the first target, but they are significantly at risk.

And the European security umbrella is fundamentally about the United States. And one of the things that's happening, starting today, is that a bunch of European countries are having serious conversations about what they would need to do in order to protect themselves without us. And that's a serious set of conversations that began in the first Trump administration, went away for a while under the Biden administration’s, as Scott said earlier, very careful and assiduous cultivation of the transatlantic alliance again, but it's going to come roaring back right now.

And I just want to say: good. They should be having these conversations because we are not a reliable ally. And so, at this point, that is a good thing for them to do. And everybody needs to be making alternative arrangements. Scott, do you have thoughts to add on that?

Scott R. Anderson: No, all I would say is, I just think, I think Russia is likely to focus on Ukraine. I don't think it's going to test the NATO commitment because it's pretty well spent on Ukraine and that's going to be enough of a resource commitment for it.

Benjamin Wittes: Yeah, I think, for now, the question is-

Scott R. Anderson: For a few years I think.

Benjamin Wittes: What about five or six years from now, you know, in the first or second term of a Vance administration.

Can the Supreme Court enforce its rulings in some way if the executive refuses to recognize them and Congress doesn't mind?

Answer, no, the Supreme Court, as Alexander, as I guess, Madison wrote…

Alan Z. Rozenshtein: No, Alexander Hamilton. Has neither the power of the purse nor the power of the sword. It is the least dangerous branch.

Benjamin Wittes: It’s the least dangerous branch. That's Hamilton, not Madison?

Alan Z. Rozenshtein: That's Hamilton. I'm pretty sure that's Hamilton. Yeah, so,

Benjamin Wittes: Look, I think it's Madison, the least dangerous branch line, but…

Scott R. Anderson: Bickle wrote the book, guys. That's what I was saying. That's fine.

Alan Z. Rozenshtein: It's definitely not Bickle.

Benjamin Wittes: Yeah, Bickle wrote the book.

Alan Z. Rozenshtein: No, Hamilton. It's Hamilton 78. Federalist 78.

Benjamin Wittes: It’s Hamilton, Federalist 78.

Thank you. As I was saying, it's Hamilton, Federalist 78. Look, the courts are nothing without others to enforce their will. I will say this in defense of Donald Trump on this point. He did not defy a ruling during his last term in office, and he had some significant adverse rulings. And he grumbled about them and he talked about who was my justices and whatever. But he, his administration did not fail to comply with court orders.

And so, you know, is that the next chip in the dam? I don't know. It's a fair question. But I am optimistic that the lawyers, you know, the lawyers staff the Justice Department who litigates these cases and they would all have bar problems if they started defying court orders, which in fact happened to Trump lawyers in other contexts. And so I do think there are some mechanisms that are available for that.

Stephen asks: how dark is the outlook for higher ed? I'm not sure any of us has, well, Alan, you have expertise on that subject. How dark is the outlook for higher ed?

Alan Z. Rozenshtein: Yeah, I mean, look, it, it depends. I think a lot depends on what sort of person is hired to run the Department of Education?

If it's a book banning ideologue, it's not great. If it's merely someone who is quite conservative, this might actually be an opportunity for higher ed to, frankly, rebalance itself and deal with some of its own pathologies. God knows higher ed has not covered itself in glory in a whole number of dimensions over the last several years. But so I think the verdict, I think the jury's still out on that one.

Benjamin Wittes: All right, last question, and I think I'm going to take the liberty of taking this one myself. Please advise on effective actions individuals may take to preserve U.S. self-government as we know it.

Okay, I want you all, every single one of you, to go out and buy a laser and find a building of your choice. No, I'm joking. Look, there is something in everybody's heart that is, can be very conventional, volunteering, getting involved politically, giving money. In my case, it's really unconventional, I project on the Russian embassy. That's just one of the things I do.

But whatever that thing is in your heart, if you aggregate it over 300 million people, those are the things that protect democracy. It's the aggregated commitments of individuals to do the things that they feel moved to do, hopefully more of them constructive than non-constructive. Hopefully more of them good than evil. But, you know, most people, most of the time, if you say, do something good for democracy, we'll do something good for democracy.

And I'm not going to tell you what it is, because frankly, everybody's got their own imagination about what the local community that they live in needs. So I'm just going to tell you, go out there and do a hundred experiments about what's good for democracy in your world. And keep doing the three that feel right to you. And with that, we will be back tomorrow to do a deep dive on what's going to happen to the Trump cases. Again, it'll be at 4 tomorrow. And we will see you then.

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