Caveat 5.25.22
Ep 127 | 5.25.22

Reliving a scandal's past.


Garrett Graff: Watergate was less an event and more a state of mind.

Dave Bittner: Hello and welcome to "Caveat," the CyberWire's privacy, surveillance, law and policy podcast. I'm Dave Bittner. And joining me is my co-host Ben Yelin from the University of Maryland Center for Health and Homeland Security. Hello, Ben. 

Ben Yelin: Hello, Dave. 

Dave Bittner: Today, Ben discusses a newly released court decision on Big Tech platform content moderation that shows a judicial split on the issue. I discuss the FBI's surveillance of Snapchat users. And later in the show, Ben's conversation with author Garrett Graff on his book "Watergate: A New History." While this show covers legal topics and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney. 

Dave Bittner: All right, Ben, let's jump into some stories this week. You have, I guess, in a way, a sort of follow-up, I suppose (laughter). 

Ben Yelin: It is - an unexpected follow-up to the story we did last week. 

Dave Bittner: OK. 

Ben Yelin: So if you'll recall, last week we talked about a 5th Circuit case coming from a state statute in Texas which instituted new rules on content moderation on Big Tech platforms. 

Dave Bittner: Right. 

Ben Yelin: And we talked about how the 5th Circuit, in a decision that was no more than a couple of lines and didn't really offer much information at all, upheld that law. And that law is now in effect, despite the fact that the tech companies and many nonbiased (ph) legal observers say it's going to be very difficult to enforce. 

Dave Bittner: Right. 

Ben Yelin: We have a new wrinkle here. The state of Florida passed a very similar bill. It's SB 7072. And I was just alerted on Twitter by Brian Fung, who is a tech reporter from CNN, that the 11th Circuit Court of Appeals, which is also a federal circuit court, has ruled for the tech platforms in this case. The holding here is that it is, quote, "substantially likely that Florida's content moderation restrictions violate the First Amendment." So the thrust of the holding is that the tech companies are private actors whose rights the First Amendment protects. I mean, that is a profound, long-established element of the First Amendment. 

Dave Bittner: Right. 

Ben Yelin: One of the points that the court made, which I think was very interesting, is that when Florida legislators - and Texas legislators, for that matter - accuse these private companies of having viewpoint - some sort of viewpoint bias, they are, in effect, admitting that these people have their own - that these companies, rather, have their own speech interests. So in saying Twitter has a liberal bias, you're saying that Twitter can express a viewpoint. And that invokes some type of First Amendment right. 

Dave Bittner: As opposed to being, say, the telephone company, who's merely letting your call go through. 

Ben Yelin: Exactly. 

Dave Bittner: That has no implicit bias either way. 

Ben Yelin: Right. 

Dave Bittner: OK. Interesting. 

Ben Yelin: And I'm glad you brought up the telephone company because the argument from state legislators and their attorneys, in both Texas and Florida, was you shouldn't look at Twitter like a private company who can institute its own content moderation. You should look at it like a common carrier. So there are rules and regulations that apply to common carriers, whether that is a telephone company or whether that's a railroad company, something that's technically private in nature. But the federal government can regulate it, force these types of companies to comply with our constitutional provisions, because they serve the broader public. 

Dave Bittner: OK. 

Ben Yelin: There's something - it's a venue where we, almost by necessity, have to exercise our constitutional rights. 

Dave Bittner: OK. 

Ben Yelin: And I think their argument here is Twitter is the new town square. If you want to have meaningful First Amendment rights, Twitter is the forum where that happens. This 11th Circuit went the other way than the 5th Circuit, and they said that these tech companies are private actors. They have their own First Amendment interests. Not to get too much in the legal weeds. I know I always say that and then I always get... 

Dave Bittner: (Laughter). 

Ben Yelin: ...Into the legal weeds. One big question going into this case was, what level of scrutiny would apply to this type of content moderation? So there are several types of judicial scrutiny - basically, how critically a court will look at a piece of legislation or a passed statute depending on the interests at stake. And when fundamental rights are at stake, the strictest form of scrutiny applies. That is called, of course, strict scrutiny. 

Dave Bittner: (Laughter). 

Ben Yelin: And that means the government has to have a compelling state interest, or as it was once explained to me by a law professor, a damn good reason... 

Dave Bittner: OK (laughter). 

Ben Yelin: ...For the law to exist, and the means have to be closely tailored to whatever the goals are. For content-based restrictions on speech, strict scrutiny applies, meaning that whatever the law is, if it institutes a content-based restriction on speech, courts are going to look very critically at that law. And 99 times out of 100, that law is going to fail. 

Dave Bittner: OK. 

Ben Yelin: There was also a question about whether what would - what's called intermediate scrutiny would apply. Those - that level of scrutiny applies when you have content-neutral restrictions. So it's restrictions on speech that aren't necessarily related to restricting certain types of content - so something like a time, place and manner restriction on speech. You don't have to have a damn good reason, you just have to have a pretty darn good reason. It's not quite as... 

Dave Bittner: Can you give me an example? 

Ben Yelin: So... 

Dave Bittner: Is this like when they give people at a political convention - they have, like, demonstration zones? 

Ben Yelin: Yeah. So that's... 

Dave Bittner: OK (laughter). 

Ben Yelin: ...Going to - time, place and manner restrictions... 

Dave Bittner: Right. 

Ben Yelin: ...Or (inaudible) I feel like vagrancy laws, laws saying you can't stay out late to protest... 

Dave Bittner: Oh. 

Ben Yelin: ...Curfews. Those types of things. If they're not overbroad, then that's not a content-based restriction. They're not saying you can't stay out if you are protesting the government. They're saying you can't stay out past a certain time if you're protesting, period. So that's an example of a content-neutral restriction on speech. 

Dave Bittner: OK. 

Ben Yelin: And courts are more willing to allow those. So I think the debate going into this case was, is the court going to see this as a content-neutral restriction on speech or a content-based restriction on speech? And the answer is, it doesn't matter. The court said that this law wouldn't survive strict scrutiny or intermediate scrutiny. In other words, they're saying that not only could the Florida government not come up with a compelling reason why they needed this law, but they couldn't even come up with an important governmental interest that would justify this type of restrictions on the speech of these private companies. So... 

Dave Bittner: Yes. Well, let me interrupt you here. 

Ben Yelin: Sure. 

Dave Bittner: So how does this reflect on the gang back in Texas with their ruling? 

Ben Yelin: I thought that a decision more like this one that we're seeing in the 11th Circuit would have been the one we saw from the 5th Circuit. 

Dave Bittner: Right. 

Ben Yelin: And we did not. That means there is some level of disagreement. Now, we don't - we can't get very granular as to what that disagreement is because we don't know what the 5th Circuit has said. Their decision gives us no information except that they were allowing the law to go back into place. So they weren't going to continue enjoining the law after the district court held that the law was unconstitutional. 

Dave Bittner: OK. 

Ben Yelin: We have a much more robust case. This is a full judicial opinion from the 11th Circuit that gets into the rights at stake and argues, I think pretty persuasively, that these tech companies are not common carriers. They are private entities. They are corporations that have their own free speech interests. And so I think they just are seeing this in a fundamentally different way. I can't really expand on that, just because I don't know how the 5th Circuit saw it. 

Dave Bittner: Right. 

Ben Yelin: We just know how the 11th Circuit sees it. So the result of all of this is I think we're on a collision course for this case to make it to the Supreme Court. And I rarely say that because not a lot of cases make it to the Supreme Court. I mean, usually about a hundred per year, and that's every case from family law to common law contracts. You know, so how many tech, content moderation, privacy cases, surveillance cases are going to make it in a single year? 

Dave Bittner: Right. 

Ben Yelin: We're talking about a very small number. But I do think, because we have this disagreement among the 5th Circuit and the 11th Circuit, this is very ripe for judicial review at the Supreme Court. In fact, there has already been a petition by the plaintiffs in the Texas case to the Supreme Court saying, we have this new persuasive authority from the Florida case. The 11th Circuit gave us this very persuasive reasoning on why these types of laws restricting content moderation are unconstitutional. Please consider this when you consider our petition to vacate the 5th Circuit's decision. 

Ben Yelin: So I think by next year, we can have a Supreme Court hearing on this on the merits, and we could get some resolution to this notion as to what First Amendment rights are at stake, whether the Supreme Court sees these entities as private companies or common carriers and how - what type of scrutiny - judicial scrutiny is going to be leveled against states who pass these type of laws. And the last thing I'll say is there's a really interesting wrinkle, which is that Justice Thomas - and I think we referenced this at one point, but he wrote a concurring opinion to a completely separate case where he started to argue that Big Tech companies - including Twitter and Meta, et cetera - were very similar, at least in a legal perspective, to common carriers at common law, which seems to suggest that there's at least one justice who is amenable to that argument. But Justice Thomas is kind of in the ideological majority in this court. So it's certainly possible that the Supreme Court will see things differently than the 11th Circuit. But I just thought it's so interesting to have these conflicting decisions come out within a week of each other. And I think we have all the ingredients to get a final resolution on this. 

Dave Bittner: (Laughter) I guess I have to laugh a little bit that, you know, by - we could have an answer by next year is actually fast as these things go, right? 

Ben Yelin: I know. I mean, especially for listeners of this podcast, who generally are in fields that move quicker than the molasses of our legal system... 

Dave Bittner: (Laughter) Right. 

Ben Yelin: ...Saying, yeah, we'll fix your problem by next June is not going to be satisfying. But what's going to have to happen is four justices are going to have to agree that this is a case worth taking up. They're going have to schedule an oral argument. I think it's likely, because they have the full reasoning of the Florida case, that that would probably get taken up, as opposed to the Texas case. Although, I'm not exactly sure which case is going to be taken up. But they'll have full oral argument, and then we'll get some type of decision on this. You know, I'm sort of an armchair meteorologist. When I look at weather forecasts, they'll say things like, we don't know whether there's going to be a severe thunderstorm, but all of the ingredients are there. You have a moist atmosphere and - whatever it is. 

Dave Bittner: Yeah, yeah. There's a front coming through. Yeah. OK. 

Ben Yelin: Exactly. So that's kind of how I feel about this case. I can't guarantee you that we're going to have the Supreme Court weigh in here, but all the ingredients are there. We have the circuit split. We have just a major ideological disagreement on the fundamental question of how to view these Big Tech platforms. 

Dave Bittner: Now, the Texas is the 5th in Texas, right? 

Ben Yelin: Yes. 

Dave Bittner: So the 5th in Texas has said very little. 

Ben Yelin: Yes. 

Dave Bittner: In fact, you know (laughter)... 

Ben Yelin: Pretty much nothing. 

Dave Bittner: Right. So if this goes to the Supreme Court, what happens? Does the Supreme Court reach out to the 5th and say, will you please explain your reasoning here? Or how does that work? 

Ben Yelin: So they don't necessarily have to do that. The original plaintiffs in the Texas case have petitioned to the Supreme Court to vacate the 5th Circuit decision. 

Dave Bittner: Yeah. 

Ben Yelin: Depending on what the Supreme Court says - and they could just say nothing and say, we grant your motion to vacate that decision. And then the District Court decision would be controlling. And the District Court said that the law was unconstitutional. 

Dave Bittner: OK. 

Ben Yelin: So they could do that. And then the District Court's own reasoning would be the prevailing law. They could say, we agree to hear this case using the full - fully-formed judicial process, going through oral arguments. And then they don't necessarily have to ask the 5th Circuit to weigh in with some sort of rationale, but then the parties would have to draft briefs. You get amicus briefs, so friends of the court briefs. So even if a tech company, for example, is not part of the original plaintiffs, they would certainly want to write in and explain why they think they shouldn't be considered common carriers. And then you're going to have a lot of outside interests, both from the academic fields, from industry and from political ideological actors who really want these Big Tech companies regulated for what they see as blatant political bias. So there is no guarantee this is going to be punted back to the 5th Circuit, even though we didn't get much out of them. I mean, that's no requirement in terms of the process. 

Dave Bittner: All right. Well, time will tell (laughter). You just... 

Ben Yelin: I know. We'll be back here in the middle of 2023, and we'll give you a nice summary of what happened. 

Dave Bittner: Right. We'll all be sitting on the edge of our seats until then, for sure. Well, until then, let me fill your brains with this story that I'm sharing this week. This is from Forbes, and it's written by Thomas Brewster. And the title of the article is "FBI Wiretap Opens Window to Murderous Drug Gang - and a Crucial Flaw in Snapchat Privacy." This story is about the FBI, who started running some wiretaps in Arizona on some folks that they thought were part of a gang, a gang - and I'm going to try to - the gang's name is spelled out phonetically. It's the Southside Murda Gang Killas. 

Ben Yelin: You nailed it. I think that's pretty good. 

Dave Bittner: (Laughter) Thank you very much. And the FBI describes them as a violent Bloods hybrid criminal street crew. These folks were involved with all sorts of things - smuggling people, guns and drugs over the Mexican border into Arizona. And so among the other things that the FBI did was get a warrant to monitor these folks' social media accounts. And one of the accounts that they monitored was Snapchat. And this search warrant was unsealed earlier this year, which is how we've gotten a look into what the FBI is capable of getting from a platform like Snapchat. 

Dave Bittner: And according to this - a presentation that Forbes was able to view from a company called PenLink, that they're saying is a surveillance provider, they said that Snapchat could provide the police with updates on user communications up to four times a day. Some cases it could even be more frequent than that. This article points out that Snapchat is - does not have end-to-end encryption. 

Ben Yelin: Right. 

Dave Bittner: And that's sort of the big - the difference maker here. 

Ben Yelin: Right. And everybody has said for a while, that's a big deal they don't have end-to-end encryption. I mean, there's a reason that people who really try and keep their communications secretive use something like WhatsApp... 

Dave Bittner: Yeah. 

Ben Yelin: ...Because it has end-to-end encryption. 

Dave Bittner: Right, or Signal. 

Ben Yelin: Right. 

Dave Bittner: Yeah. So I think a - where a lot of folks get confused about this is that Snapchat is ephemeral in its messaging, which is that there's a set period of time, and after that period of time, the message disappears. And Snapchat says that when you have your messages set to be ephemeral, that they get deleted from their servers automatically, as well. However, if Snapchat has a warrant in place from the FBI, then they don't automatically get deleted (laughter). 

Ben Yelin: Yup. 

Dave Bittner: They get saved, and they get sent to the FBI. 

Ben Yelin: Which all of you saw in that EULA that you read when you downloaded your Snapchat application. 

Dave Bittner: (Laughter) Right. Right. The - people are still reading the EULA who - the original people who logged on to Snapchat years ago, they're still making their way through the EULA (laughter). 

Ben Yelin: Page 10,133, yeah. 

Dave Bittner: Right, right. So, you know, I think it's interesting in that - I think you and I are in agreement that, you know, this sort of surveillance - well, I don't want to put words in your mouth. But I've said here before that I'm OK with it if you have a warrant. 

Ben Yelin: Right. 

Dave Bittner: You know, convince a judge that you have a good reason to be looking in on people's communications. And I think that - to me, that's reasonable. And that's what the FBI did here. What's interesting from the point of view of the alleged crooks here is that I think they thought their communications were secure, probably because of the ephemeral nature of it. And, in fact, they were not. 

Ben Yelin: Right. I mean, I think there is a misconception that ephemeral means secure when it really doesn't. I mean, there's something as simple as taking a screenshot, for one, and having that sent in a text message. But now we know that - I wouldn't necessarily call this a backdoor, because usually when we're referring to backdoors, we're talking about dragnet programs... 

Dave Bittner: Right. 

Ben Yelin: ...Warrantless searches. But this is a way for law enforcement to gain access to these messages that the public wouldn't necessarily know about, either without having read the EULA or without reading these deeper dives into the security features of these applications. 

Ben Yelin: I have no problem with what law enforcement did here. As you said, this is not dragnet surveillance. It seems like they certainly had particularized suspicion. These seem like genuinely bad people that they're investigating. And I don't really blame Snapchat. I mean, they want to maintain a good relationship with law enforcement. I think they are less antagonistic to law enforcement than the WhatsApps and Signals out there. And there is a pretty large market for secured communications messaging applications. 

Dave Bittner: Right. 

Ben Yelin: And, really, the solution here is people need to pay more attention to the security features of those applications. If you are really trying to conceal your messages from law enforcement, then you need an application that has end-to-end encryption. 

Dave Bittner: Right. 

Ben Yelin: Ephemeral is not end-to-end, and I think these alleged perpetrators are learning that the hard way. 

Dave Bittner: Well, and some of these apps - like Signal, for example - you can set it to be ephemeral. It is, by default, end-to-end encrypted. In fact, I don't think with Signal you have even a way of disabling that. But you can also set it to automatically delete messages after a certain amount of time. But as you rightly pointed out, that doesn't keep someone from doing a screen capture or taking a picture of the screen with another device, right? 

Ben Yelin: Right. 

Dave Bittner: If you can see it, you can copy it. And so... 

Ben Yelin: Now, I'm sure what the defense attorney is going to argue is, fine, it's not 100% private because somebody could take a screen capture or you could have an FBI agent standing behind somebody, tailing them, doing, you know, in-person surveillance and capturing a picture of that device. 

Dave Bittner: Right. 

Ben Yelin: Given the resources that law enforcement has, they're going to be somewhat limited in their ability to do things like that - to go around tracking every suspected criminal and taking pictures over their shoulders of individual devices. So what's concerning, from a civil liberties perspective, is that they can do this on a relatively mass scale. But as you said, the check on that is the fact that this is subject to judicial approval. 

Dave Bittner: Right, had to get a warrant. 

Ben Yelin: And when is - right, exactly. So that's the institutional check here. So, yeah, I mean, I don't have a problem with it. I just think it's a good wake-up call that people need to pay very close attention to the security flaws in your favorite messaging applications. 

Dave Bittner: Yeah. 

Ben Yelin: If you want to conceal your information from law enforcement or if you're just a hobbyist and care genuinely about end-to-end encryption and keeping your communications private, which many people do. 

Dave Bittner: Yeah, yeah. So use Signal. Use WhatsApp (laughter). 

Ben Yelin: Yeah. They did not pay us to say that. 

Dave Bittner: Right. 

Ben Yelin: But now you have your homework. 

Dave Bittner: There you go. Right. Yeah, as you say, do your homework because there are solutions out there to these problems. You have options, and they're all - you can get them all. They're easy to get. They're cheap. They're - many of them are free. So what are you waiting for (laughter)? 

Ben Yelin: Right, exactly. And I think if you think about the decision that these companies make, everything has some sort of trade-off. I think for a company like WhatsApp, they want to sell themselves - or Signal - as the end-to-end encrypted application. 

Dave Bittner: Right. 

Ben Yelin: They care first and foremost about security. That can have positive and negative connotations. Other companies market themselves in different ways. I guess, from my perspective, I'm not sure that Snapchat marketed themselves as the most secure messaging application. So I think, given the fact that they didn't do so, you should be somewhat suspicious that they have the latest and greatest security features. 

Dave Bittner: Right. Right. All right. Well, we will have a link to that story in our show notes. We would love to hear from you. If you have a story that you would like us to consider for our show, please send us an email. It's 

Dave Bittner: All right, Ben, you recently conducted an interview with author Garrett Graff. His new book is titled "Watergate: A New History" - really interesting conversation. Here's Ben's conversation with Garrett Graff. 

Garrett Graff: Thanks for having me, Ben. And thanks for the kind words. It was an enormously fun project to put together and research. One of the things that most surprised me in the research and writing of this book is the extent to which we misunderstand in history what Watergate actually was, that Watergate is, you know, shorthanded as this burglary at the Democratic National Committee headquarters, June 17, 1972, 50 years ago next month. But when you get into looking at the Nixon administration, what it's clear is that Watergate was less an event and more a state of mind, that it was this dark, paranoid, conspiratorial mindset of corruption and abuse of power that permeated the Nixon White House, going back to really the '68 campaign itself. 

Garrett Graff: And by the time Watergate the scandal is over, in August 1974 with the resignation of Richard Nixon, what you actually see is that Watergate is less a single burglary and more about a dozen distinct scandals with varying motives, varying players, each distinct but overlapping in certain respects, that really comes to define the Nixon presidency in a way that we sort of misunderstand. And that in some ways, thinking of Watergate as a burglary is like walking into the second or third act of the play without ever understanding that, you know, what you have been watching has been unfolding for, you know, months or years before that. 

Ben Yelin: Yeah. I mean, it strikes me that most people wouldn't consider this grander concept of Watergate to include things like trying to break into Daniel Ellsberg's psychiatrist's office in Los Angeles, or, as you write in great detail, conspiring to start a fire at the Brookings Institution in Washington, D.C. I guess for my next question, which institutions do you think succeeded and which institutions failed when we talk about Watergate? So that can be federal agencies, the court system, the media. Where do you see our largest institutional failures of that era, and where do you see our largest institutional successes? 

Garrett Graff: This is just a fantastic question because this is in some ways what drew me to this story right now in the first place, which is, this is a - you know, so I'm - you know, my day job is as a reporter, you know, covering politics and national security in the U.S. And so, you know, I'd spent most of the last, you know, at this point, five, seven years covering the Trump administration, the - Russia's attack on the 2016 election, the Mueller investigation. Bob Mueller was the subject of one of my previous books, sort of long before he became special counsel. 

Garrett Graff: So I've been thinking a lot over the last couple of years about, you know, these questions of presidential abuse of power and corruption and criminality in the White House. And sort of that interest was actually in many ways what led me to trying to dive into Watergate in the first place and trying to figure out, you know, what was different then, and how did our nation respond to these challenges to democracy, you know, challenges to good governance, challenges posed by a criminal and corrupt president the last time we dealt with them? That, to me, is sort of what makes Watergate - as I call it in the book - probably the most interesting story ever told about power in Washington, that Watergate is, at its essence - it's, yes, a story about the Nixon White House and, you know, Nixon's presidency, but more broadly, it's a story about how all of the institutions of Washington - the media, the FBI, the Justice Department, the executive branch, the House, the Senate, the district court, the appeals court, the Supreme Court - all come together to do something that no one of them can do, which is force Richard Nixon from office. 

Garrett Graff: And that - this is a story that unfolds sort of through each of those institutions and that - you sort of see this incredible ballet, you know, this dance between the checks and balances and the powers and authorities of the executive branch, the legislative branch and the judicial branch. Article I of the Constitution, Article II of the Constitution, Article III and the Bill of Rights, the - you know, the freedom of the press, all come together to drive Richard Nixon from office using their collective power and authority in a way that is larger and more powerful than any one of them can act on their own. 

Ben Yelin: That's what is so striking about it to me, is ultimately, you had a unanimous decision in United States v. Nixon, Nixon himself was willing to abide by the court's holding and release the tapes - the so-called smoking gun tape - and he resigned. Do you think in a similar situation, those institutions would hold today? And why or why not? 

Garrett Graff: You know, that was obviously, to me, one of the most instructive lessons of this was when you look back 50 years ago at what worked in Watergate, it gives you some clarity about what didn't work now because, you know, obviously, Washington ended up with a very different result in Donald Trump's presidency than it did with Richard Nixon's. To me, there are, you know, a million things big and small that stand out, but there are sort of two worth singling out, I think. One is there was no Fox News, that there was no sort of right-wing media ecosystem separate and apart from the national media ecosystem that could provide, you know, for lack of a better term, sort of aid and comfort to the Nixon administration, you know, sort of punish Republicans who stepped out of line. 

Garrett Graff: And then you get to, you know, not unrelatedly, what I think is the main difference between then and now, which is the way that Republican members of Congress acted in Watergate versus the Trump years. And what I mean by that is what you saw in the Nixon years was the desire of the Republican members of Congress - of the House and Senate - to hold the executive branch to account as co-equal members of the legislative branch, that they saw their role as Congress, that their role as a legislative branch, was to hold the executive branch accountable for corruption and abuses of power first and that they acted as members of Congress first and Republicans second. And I think what you saw in the modern era, in the Trump administration, was members of Congress acting as, effectively, Republicans first and members of Congress second and that they saw sort of their first prerogative now as trying to protect the presidency and the members of their own party, rather than trying to protect the prerogatives and the power of the legislative branch, first and foremost. And so we sort of almost have seen something shift to something that is more of a parliamentary system, where you have, you know, sort of members of Congress acting as party first and Congress second. 

Ben Yelin: It's really interesting that you say that. So a couple of the legislative items that I think come in the direct aftermath of Watergate, or I consider part of the Watergate era, are the War Powers Act, which was vetoed but overridden, as a constraint on executive power, and then one that's near and dear to my heart, the Foreign Intelligence Surveillance Act of 1978, because that was the reaction to a lot of things, the Church Committee being one of them, but also, I think, to Watergate. Are there other - and maybe you can talk specifically about surveillance, but were there other reforms, things that happened in the aftermath of Watergate in the post-1974 period where there was an institutional pushback against what we had just been through, that stand out to you, that stood out to you while you were doing research for this book, beyond those pieces of legislation? 

Garrett Graff: Yeah, absolutely. And I think you're absolutely right to single out some of those reforms, because in many ways, Watergate delivers modern Washington to us, that it stands as this hinge between, you know, what was basically an era of, you know, segregationists and World War I veterans on Capitol Hill, you know, these incredibly powerful committee chairs in the House and the Senate, and a town that was driven by morning and afternoon newspaper deadlines, and delivers it on the other side of Watergate into a much more dynamic Congress, a much more involved Congress, a media that is sort of much faster and more accusatory, more investigative, and that there's sort of this entire new sense of oversight of the executive branch. And, you know, you mentioned, you know, the Church Committee and the Pike Committee and the reforms there for - that very directly grew out of sort of the abuses of power that came to light in the Watergate era, you know, that deliver the first, you know, sort of meaningful oversight to the intelligence community. You know, the - as you cited, you know, the Foreign Intelligence Surveillance Act, the FISA system that we have for lawful wiretaps - you know, all of that grows out of the sort of abuses of power that come to light during Watergate. 

Garrett Graff: And there's this sense, really, of presidential oversight by Congress that was new, that - you know, when Sam Ervin's Watergate committee was starting its work in '72, '73, there wasn't really the sense that Congress did routine oversight of the executive branch and that, in fact, they actually had to go all the way back to the congressional hearings of the Battle of Bull Run in 1861 to find the analogues for the type of work that they wanted to do about sort of questioning what the presidency was doing. So, you know, that whole era of oversight really grows out of Watergate. The Watergate babies - you know, the fall of '74, you have a hundred new members of Congress come in, the vast majority of them Democrats, who reshape Congress and Washington in ways big and small and lasted an incredibly long time. You know, my senator, my home state Senator Patrick Leahy, is retiring this year as the last of the Watergate babies. 

Ben Yelin: Almost 50 years later. Amazing. 

Garrett Graff: Exactly. And that this is - you know, this is a generation that changes Washington and brings in, you know, all manner of levels, new levels of transparency and attention to oversight. And by the way, you know, we are sort of still living day-to-day with the fights over Watergate. You know, all that we are seeing right now between the January 6 committee and the Trump administration, the former Trump administration, the fights over executive privilege - Nixon and Watergate gave us executive privilege. You know, there had been presidents that had claimed executive privilege before Nixon, but no one before Nixon had ever proved it. And it was actually that Supreme Court case you mentioned that actually codified for the first time and accepted the idea of an executive privilege in the first place. 

Ben Yelin: Yeah. How much of that spirit of oversight and transparency do you think has persisted almost 50 years later? And one of the reasons I mention that is, as somebody who studies electronic surveillance, the tools have grown exponentially. The potential levers that the government has to compel private communications are vast. They can subpoena phone records, all - they can collect all types of internet traffic. If there were another Nixon, who was as vindictive and as paranoid and as obsessed, do you think now there are those same types of institutional checks, the spirit of oversight, the spirit of transparency, that would stop that from happening again? 

Garrett Graff: Well, I think, unfortunately, we have a pretty good case study of living through that over the last five years. 

Ben Yelin: Right. 

Garrett Graff: And that we sort of did actually have a president who was as paranoid and conspiratorial and vindictive. You know, in many ways, what we saw during the Trump administration was that the system held, that, you know, officials at NSA and the FBI and the Department of Justice and the CIA, you know, sort of refused to do the craziest ideas that Donald Trump put forth. But that's not a guarantee that that will continue going forward, and that what we saw in many of those cases was that the institutional norms that have grown up since Watergate are just norms, that they are, you know, that in fact, you know, Trump's presidency in many ways pointed out how much of what we think of as, you know, the ways that Washington functions are unofficial norms rather than, you know, codified laws or authorities or limitations, and that, you know, unfortunately, it's relatively easy to imagine, you know, a future administration that was sort of as interested in authoritarian tactics as Donald Trump was, but was more competent and had sort of done a better job, you know, sort of moving some of those executive branch levers to install more willing participants in key roles sort of up and down the hierarchy of the executive branch, that wouldn't necessarily hold, that sort of would be free to act on their darkest impulses in a way going forward. 

Ben Yelin: I have two more questions before we wrap up. The first is, if you could enact one policy change, whether it would be regulatory or legislative, that would constrain executive power, specifically related to mass surveillance, what would you recommend? If you have one. 

Garrett Graff: My sort of No. 1 reform there is, I think, surveillance-adjacent, which is, I think, sort of the No. 1 hole that Donald Trump exposed in the regular order of the U.S. government is sort of the abuse of acting officials. And that sort of if you ask me, what is the thing that scares me most about a future administration sort of with more authoritarian tendencies, it is sort of the extent to which Donald Trump was able to so easily and for such long periods of time circumvent, you know, the Senate confirmation process and sort of the normal lines of succession and order at so many of these agencies. 

Garrett Graff: And all of which, by the way, I think has a very direct bearing on, you know, who is in a position to order sort of illegal or extraconstitutional or simply sketchy surveillance programs, which is, you know, we look at, you know, the - how close a figure like Kash Patel came in, you know, the final sort of weeks and months of the Trump administration to becoming, you know, acting CIA director or acting deputy director of the FBI, you know, or acting director of the NSA. And you know, to the extent that the people who are in charge of the law enforcement and intelligence, you know, branches, bureaus and agencies of the U.S. government actually have to have, you know, either some background knowledge or history of good judgment prior to ending up in those jobs, I think that that's actually the most important sort of check on wild surveillance or, you know, abuse of civil liberties that we have in the government. 

Ben Yelin: Very good answer. I think frequently about Rick Grenell as well, as somebody who was kind of a Twitter troll, basically, who became ambassador to Germany and then the director of national intelligence. So, yeah, your answer there is very well taken. My last question is more of a fun one. Why did they do it? Why did - what were they looking for in the Democratic National Committee headquarters on June 17, 1972? It's an unanswered question, but I'd want your theory on it. 

Garrett Graff: Yeah. And I think that this is, like, part of what makes this story so fascinating is realizing, you know, this is one of the most covered, most investigated events of all of modern history. You know, probably up there in terms of the, you know, JFK assassination in terms of the, you know, depth and breadth of investigations that have gone into it. And yet, it sort of still ends up with a lot of loose ends and weird things that are unexplained. 

Garrett Graff: And I think one of the things that really stands out is exactly this question that you mentioned, which is, we still don't know who ordered the Watergate burglary in the first place, nor what the burglars were actually doing when they actually went in there. Much of history has sort of shorthanded this as, you know, John Mitchell, the attorney general and campaign direct - Nixon re-election campaign director, gave the order and it was a bugging operation. But probably both halves of that are not at least entirely true. And in fact, that there are a number of different people who seem like possible candidates for ordering the break in, including the possibility that, like, nobody ordered it and Jeb Stuart Magruder just acted of his own accord, you know, as the deputy campaign director, you know, and sort of hoped that sort of something surprising would come out of it. And that on the burglars’ side, that there are sort of all manner of different theories. You know, illegal foreign campaign donations, you know, a question of whether they were trying to dig up dirt on the Democrats or whether they were trying to figure out what dirt the Democrats had on Richard Nixon. You know, questions about whether the CIA actually knew about and/or sabotaged the burglary that night - by the way, which there's pretty compelling evidence, you know, leading to sort of questions about deeper CIA involvement that night than we probably understand. 

Garrett Graff: And you're sort of left with, you know, or at least I'm sort of left with the sense that probably actually there were two or three different motives unfolding amid the burglary team of seven people that night, not all of whom understood the motives of the other people on the burglary team and that, you know, the Cuban exile Bay of Pigs veterans on the burglary team may have thought that they were doing one thing, while James McCord was doing something else and E. Howard Hunt had a, you know, something else entirely going on. And that, like, it's a very, very weird set of circumstances. And at this point, unfortunately, we will probably never know the full answer. 

Ben Yelin: Yeah, I mean, that's something that came out of your book, as well. And a lot of the principles are now dead. Memories get hazy after 50 years. Anyway, I wanted to thank you so much. I thought it was a very illuminating conversation. I loved the book. It is "Watergate: A New History." It is a long read but a very worthwhile read. It's definitely a book I think I'm going to read again, which I rarely say 'cause I think there are almost certainly details I missed the first time around. So thank you very much. 

Garrett Graff: Thanks so much for having me. A fun discussion. 

Dave Bittner: All right, Ben, that was fascinating. And a couple of things stood out to me. One was Garrett points out that so many of the things that I think many of us took for granted in Washington were merely norms and... 

Ben Yelin: Right. 

Dave Bittner: ...Not laws. 

Ben Yelin: Not enforceable. 

Dave Bittner: Right... 

Ben Yelin: Yeah. 

Dave Bittner: ...Right. People just did or did not do things because those were the standards that had been established... 

Ben Yelin: Right. 

Dave Bittner: ...And if you have somebody willing to throw that out the window, you don't always have a backstop for it, right? 

Ben Yelin: Yeah. I mean, there were institutional structures in place and institutional norms that protected against executive branch overreach. And that's especially true when it comes to surveillance. I think there is more of a thought among legislators at the time that they were speaking and arguing on behalf of their branch of government... 

Dave Bittner: Yeah. 

Ben Yelin: ...And not on behalf of their political party. 

Dave Bittner: That was the other point that I was going to bring up, is that it seems as though - I guess there wasn't as much coordinated effort on behalf of the parties themselves and the different branches - I don't know if it's fair to say took their individual responsibilities more serious. Maybe that's not the right way to frame it. But... 

Ben Yelin: Yeah, I mean, I think they saw themselves as the legislators before they saw themselves as members of political parties. And one reason for that is the parties themselves weren't as polarized. So you had some very conservative Democrats at the time based in the South. It was still... 

Dave Bittner: Right. 

Ben Yelin: ...Customary that Democratic representatives in the Deep South states got 100% of the vote, but they were more conservative than most Republican members. So then you had liberal Republicans in the Northeast. So that's part of it. But I think also there was just more of an idea that you were a caretaker of the institution of which you were a part. And we saw that in the 1970s related to surveillance in a number of ways. The first was the formation of the Church Committee, which was chaired by Senator Frank Church, that looked into illicit surveillance activities going back through the FBI administration of J. Edgar Hoover. And much of the motivation for that was what we had seen in Watergate, that there was so much electronic surveillance taking place from the executive branch with very little oversight. Now, obviously, what the Nixon administration was doing was criminal. It was dirty tricks. But much of what was uncovered in the Church Committee was perfectly legal. These were covert operations that people had moral qualms with but were well within constitutional bounds. 

Ben Yelin: And then something I think we mentioned at the end of the interview is all of this led to the enactment of the Foreign Intelligence Surveillance Act. I think the combination of Watergate and the Church Committee and a couple of court cases at the time led legislators to feel that they need to put their own stamp on surveillance law, and they needed some type of mechanism to protect against unbiased mass domestic surveillance, recognizing that there is a national security interest in wiretapping, which was the electronic surveillance of choice at the time, and things like pen registers, but also recognizing that we needed to do it in a way that comported with our constitutional values. 

Ben Yelin: And I think prior to Watergate, I just think we didn't have a - as a country, an understanding of how bad it could get if we had an unchecked executive who was willing to deploy these types of mass surveillance powers. And so that's where I think it's very relevant to our podcast, is that was almost the original sin of executive branch overreach in the realm of invasions of people's privacy. Certainly it invades privacy when you raid somebody's therapist's office and try to collect that therapist's notes, but also in terms of institutional checks on surveillance. So I think Garrett's, Mr. Graff's book was just a really fascinating read, kind of setting setting the groundwork in the history of surveillance in this country. 

Dave Bittner: Yeah, and such an interesting lens with which to view all of the current goings-on. You know, like there's so many lessons to have been learned from Watergate, and things in his book that I was unaware of, and, you know, it was - I mean, I was - it was a little before my time, you know, obviously way before your time, but still. 

Ben Yelin: Yes. I was not a gleam in my parents' eye. 

Dave Bittner: Yes. But still, you know, I - around enough that it was conversation, you know, around the dinner table and so on and so forth, you know. And I guess Nixon was much more proximate when I was a young child than certainly he is today. And so to look back on that and try to - I guess for me, it's a little disheartening that - to look at some of the things we're going through today, and that people aren't standing up for the institutions, people aren't standing, they're choosing their parties over the Constitution and those sorts of things. And when you look back on something like the things that Garrett Graff points out in his book, it really makes the light on that even brighter, in my opinion. 

Ben Yelin: I agree. I completely agree. I mean, I always go back to the fact that the Supreme Court held unanimously that Nixon had to release the tapes that ended up implicating him in the Watergate cover up. Many of those appointees were appointed by Richard Nixon himself. And I hate to say, to Nixon's credit, but I will say it, he released the tapes. I mean, he was compelled to do so by the Supreme Court. He knew that it would end his presidency. I mean, he was on tape saying, let's cover up this story. Tell the FBI to cover up this story. He knew that that was going to end his presidency. And because of a belief in the constitutional system and separation of powers, even though it was Nixon who had the army to command and not the Supreme Court, he complied with it. And I think there's no guarantee, as we've seen, that that's going to happen in the future. So I think it's kind of a apocryphal tale, I just think, very relevant to the types of stories that we talk about on our show all the time. 

Dave Bittner: Yeah, absolutely. All right. Well, our thanks to Garrett Graff for joining us. Again, the book is titled "Watergate - A New History." 

Dave Bittner: That is our show. We want to thank all of you for listening. The "Caveat" podcast is proudly produced in Maryland at the startup studios of DataTribe, where they're co-building the next generation of cybersecurity teams and technologies. Our senior producer is Jennifer Eiben. Our executive editor is Peter Kilpe. I'm Dave Bittner. 

Ben Yelin: And I'm Ben Yelin. 

Dave Bittner: Thanks for listening.