Nota Bene Podcast Ep. 172
The Next Four Years in National Security Policy with Jonathan Meyer of Sheppard Mullin
Thank you for downloading this transcript.
Listen to the original podcast released December 18, 2024 here:
https://www.sheppard.com/notabene-615
In this episode, we are joined by the Honorable Jonathan Meyer, former General Counsel of the U.S. Department of Homeland Security and a partner at Sheppard Mullin.
We discuss what the Trump administration’s national security team will look like, and what we can expect in the first 100 days.
About Jonathan Meyer
As a partner in Sheppard Mullin’s Governmental Practice Group and leader of the firm’s National Security team, Jonathan E. Meyer counsels clients on their interactions with federal and state government, as well as national and homeland security, Congressional oversight, cybersecurity, AI, high tech, and transportation security, among other issues.
Prior to returning to Sheppard Mullin, Jon was nominated by President Biden and confirmed by the Senate as the Sixth General Counsel of the U.S. Department of Homeland Security, serving from 2021 to 2024. His decades of experience in Congress, the Justice Department and DHS position him to bring an insider’s perspective to interactions between private companies and the government. He has defended scores of Congressional investigations and has prepared witnesses for over 100 hearings, including Supreme Court nomination hearings, impeachment hearings, oversight hearings, high tech and antitrust investigations, and civil rights investigations, among others. He has also represented defendants and witnesses in high-stakes Justice Department criminal investigations.
The media – including CBS News, NPR, The Wall Street Journal, The New York Times, The Washington Post and Politico – regularly turn to Jon for insight into issues regarding national security, homeland security, government investigations, cybersecurity, immigration, politics and Congress. He has twice been honored with the Secretary of Homeland Security’s Outstanding Service Medal, the highest civilian award bestowed by DHS. He has also received the U.S. Secret Service Director’s Honor Award, the Customs and Border Protection Commissioner’s Ensign Award, and the U.S. Coast Guard Commandant’s Distinguished Service Medal, among numerous other prestigious accolades recognizing his exceptional service.
About Scott Maberry
An international trade partner in Governmental Practice, J. Scott Maberry counsels clients on global risk, international trade, and regulation.
Scott’s practice includes representing clients before the U.S. government agencies and international U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC), the Department of Commerce’s Bureau of Industry & Security (BIS), the Department of Commerce Import Administration, the Department of Homeland Security (DHS), the Department of State Directorate of Defense Trade Controls (DDTC), the U.S. Department of Justice (DOJ), the International Trade Commission (ITC) and the Committee on Foreign Investment in the U.S. (CFIUS). He also represents clients in federal court and grand jury proceedings, as well as those pursuing negotiations and dispute resolution under the World Trade Organization (WTO), North American Free Trade Agreement (NAFTA) and other multilateral and bilateral agreements.
A member of the World Economic Forum Expert Network, Scott also advises the WEF community in the areas of global risk, international trade, artificial intelligence and values.
Transcript:
Welcome to the Nota Bene podcast. I'm your host, Scott Maberry. My guest today is the Honorable Jonathan Meyer, he's the former general counsel of the US Department of Homeland Security and a partner at the law firm of Sheppard Mullin. We're talking about what the new Trump Administration will do about US national security. Before I introduce our guest, I'd like to thank our listeners in over 100 countries worldwide, we're so glad you're tuning in. And please keep the comments coming, it definitely influences our programming. You can email me directly with your suggestions. My email address is in the program description.
My guest, Jon Meyer, was the general counsel of the US Department of Homeland Security. He now heads the national security law team at Sheppard Mullin. With Jon's background, there's no better person to help our audience understand what the next four years of US national security strategy and policy will look like. So Jon, welcome to Nota Bene.
Jonathan Meyer:
Thanks. It's great to be here, Scott.
Scott Maberry:
So President-elect Trump's key national security team is coming into close focus now. In my view, there are two main categories of nominees and I'll be interested in your ideas on this, but in the way I'm thinking about it, this may help shed some light on what we think their policies may be.
Category one, I would call traditional national security conservatives. My examples of those are National Security Advisor nominee, Mike Waltz. Florida Congressman and Secretary of State nominee, Marco Rubio, Florida Senator former Donald J. Trump detractor turned strong supporter, and in fact, appeared at President-elect Trump's New York trial. The priorities for category one I would say, on national security are going to be about China and the border. There may be others, but those are the two big campaign issues and they'll be very keenly focused on those priorities, and those are somewhat traditional Republican national security priorities.
Category two, I would call maybe like the deep state disruptors. My examples of that are Secretary of Defense nominee, Pete Hegseth, Fox News Media personality and Secretary of Homeland Security nominee, Kristi Noem, Governor of South Dakota. They also have policy priorities, not to minimize those, but I would say that their big priorities are going to be to investigate and dismantle the prior administration's policies to a large extent and to maximize support from the political base.
So, Jon, you've been immersed in a lot of these national security issues for years, so let's talk about the next four years in national security. In your view, who are the key personnel that President-elect Trump has picked for national security?
Jonathan Meyer:
So, thinking about that just as you sort of divided the people into two categories, it's useful to think of two categories of national security. One is Homeland Security and Border Security, and one is the more traditional national security.
I think on the more traditional national security, I think people like Senator and Secretary nominee, Rubio, are going to be important, and the National Security Advisor as you mentioned, will be important. I think it will be a different cast of characters that will be focused on the Border Security and Homeland Security, which is national security, but is treated differently and as you know is a huge point of emphasis for the Trump Administration. And there, the two key figures really are going to be Stephen Miller, who's going to be the Deputy Chief of Staff for Policy, as well as the Homeland Security Advisor. He's going to wear two hats, I believe, in the White House. And the newly named border czar, are Tom Homan, who is a former acting director of ICE, I worked with him when he was ICE years ago. And he ironically is by one definition at least, former member of the deep state, in that he was a career public servant for many years but has been very much a part of Trump world for the last number of years.
Scott Maberry:
Yeah, so we've got traditional defense as you've outlined it with Secretary of Defense, and then you've got Homeland Security, Border Security, and yeah, the players there are a little more out of the public profile or not as high profile let's say, but well known in the sense that... Talk a little bit about Stephen Miller and what his role might be and what he's going to do.
Jonathan Meyer:
Yeah, right, and you'll notice one person I didn't mention on the Homeland Security side was the person who is going to be nominated to be the Secretary, Kristi Noem. And that is because so much on the Border Security side is not going to be really run out of DHS, it's going to be run out of the White House, and the key person there is going to be Stephen Miller. Stephen Miller has been named to be the Deputy Chief of Staff of Policy in the White House, as well as being the President's Homeland Security Advisor. So he'll be wearing two hats, which makes him all the more important, and he'll be working with the border czar, Tom Homan, who will also be the White House.
So Stephen Miller began his career, at least his public career, on Capitol Hill on the Senate Judiciary Committee, but he moved into the Trump Administration at the beginning of the first Trump Administration at the Justice Department. Worked very closely with the Attorney General, but his focus from pretty early on has been immigration and he ultimately ended up at the White House during the first Trump Administration and is really viewed to be President Trump's top advisor on immigration and Border Security. He is viewed as very much a hardliner, very tough on immigration. A lot of the immigration policies of the first Trump Administration, as well as the commitments President Trump has made during this recent election, stem from him. And then his really right hand on this is likely to be Tom Homan, who was the acting director of ICE years ago. I worked with him when we were both at DHS, and he been named to be the border czar.
Scott Maberry:
ICE being Immigration and Customs Enforcement.
Jonathan Meyer:
Correct. The folks who are in charge of deporting people from the interior of the United States back to the countries from whence they came. And so that is going to be, as you say, Scott, that is going to be a very sort of MAGA Trump approach to things, very hard line, tough on immigration, tough on the border, rebuilding the wall, etc, and we can expect that to get going very early. We've already seen from people like Speaker Johnson, an indication that they want to move on Border Security legislation first and are likely to do that in the early days of the Trump Administration. We're also likely to see executive orders and executive actions coming from the White House and from DHS in this area.
Scott Maberry:
So that's kind of a good segue. Given that person or those personalities in those positions and what we know about the policies and what their mandates are, what would you say we should expect in the first 100 days of the Trump Administration for national security?
Jonathan Meyer:
Again, on the Homeland Security, Border Security side, toughening up of immigration, stronger emphasis on enforcement, emphasis on restarting the building of the wall and those sorts of things, which we saw before and we can expect to see return.
On the more traditional national security, I think we're going to see a shift in some areas and not in other areas. On Russia and particularly the Ukraine war, we're already seeing a shift as President Trump prepares to take office. He's very focused on bringing that conflict to an end. He is likely to be less tough on Russia but more demanding of Ukraine, that is how he has talked all along and we have every reason to believe it will be the case.
On the other hand on China, which is another important national security priority, we won't see as much of a change. The Biden Administration has been tough on China, has instituted any number of policy initiatives to restrict China and to get tough on China from a national security perspective. And President Trump shows every intention of doing the same, if not more. Be it restrictions on Chinese investment in the United States, restrictions on US investment in China, or I don't know if traditional is the right word, but another weapon or tool being of course, tariffs. And he's already talking about as he's talking about tariffs generally, he's talking specifically about China.
One additional area of national security concern, which is really gaining heightened emphasis just in the last few days is the Middle East in light of what has happened in Syria. And President Trump, like virtually every president before him, has been focused on the Middle East and trying to find ways to make peace there and to grapple with the tensions between Israel and its neighbors, and figure out how to create a strong, positive but appropriate relationship with Saudi Arabia. But now with the fall of Syria, it'll be very interesting to see what happens. Syria has been really a client state of Russia and Iran and has had close ties with Hezbollah, and therefore has not been so much within US spheres of influence.
Another important national security person we haven't mentioned is Tulsi Gabbard, who's going to be the Director of National Intelligence. She has been friendlier toward Syria and toward the now fallen Assad regime than most other foreign policy experts have been. It'll be interesting to see how that all plays out, but it will likely play out to some extent under the influence of President Trump's attitudes toward Russia, which are different from those that the Biden Administration had.
Scott Maberry:
Yeah, it's a big wild card in my mind, because being a major Russian proxy situation and being what I would consider now a major Russian foreign policy failure, the fall of the Assad regime, that grows another little bit of instability into what's already a very unstable, maybe not unstable, but unpredictable situation with Russia. And I think from Russia's perspective, there may be some help coming from really, two fronts. If President-elect Trump follows through on what I believe are some fairly credible demands or some fairly credible promises that he's going to demand that Ukraine come to the bargaining table and work out a settlement. When you combine that with the fact that Russia is going to be hurting from the loss of the client situation in Syria, that's going to make for a very unpredictable set of possible outcomes in Ukraine, to me.
Jonathan Meyer:
Yeah, it's interesting how the Middle East and Ukraine are sort of coming together now and have become more tied as an issue, if... I would not want to be Volodymyr Zelenskyy, the President of Ukraine right now. Not that I ever would have wanted to be, he's had a tough job from day one. I think it just got a lot tougher.
Scott Maberry:
It's true. There is the question of whether anything could force them to the bargaining table, since they're fighting what from their perspective has got to be kind of a war of existential proportions. It might be harder than the Trump Administration thinks it will be to get them to come to the bargaining table and start ceding more territory, which I think is essentially the basis of, at least in the public discourse, of President-elect Trump's view of the settlement.
Jonathan Meyer:
I think that's right. I think it's all about those eastern territories in Ukraine, but Zelenskyy and the Ukrainian government are so strongly dependent on foreign assistance, foreign defense assistance. I think Zelenskyy will have no choice but to take seriously the proposals and the demands that President Trump will make.
It'll be also interesting of course to see what Europe will do and where they will come out on all of this. Western Europe has for the most part been strongly supportive of Ukraine, but that was while the American government was supportive of Ukraine. It'll be interesting to see whether that continues. And of course, that'll play into another one of President Trump's themes, which has been NATO, and as you'll recall in the first Trump Administration, he put a lot of pressure on members of NATO to ante up, if you will, to give more money to live up to their financial commitments to the organization.
Scott Maberry:
Yes, and that's been an interesting outcome of the first Trump Administration. The commitment under the NATO agreements is 2% of GDP for defense, and several countries were well under that at the beginning of the Trump Administration, and several of those countries are now over that in part driven, I think by the threat of Russian aggression. Also, maybe in part because if the Trump Administration does what at least President-elect Trump has been signaling, there may be less support for NATO under a Trump Administration than there was before. What's your view of what's going to happen to NATO under the Trump Administration?
Jonathan Meyer:
So it's an interesting question and I think an important question will be put to the test, question that's been out there really without an answer over the last few years, which is, is what President Trump did with NATO last time around, was it posturing just to get them to give more money or does he really want to do away with or at least significantly diminish NATO? I think we're about to find out, and my guess is it's a bit of both. I tend to think it is mostly the posturing to get them to contribute more. That's not to say he's a fan of NATO, I think it's pretty clear he's not, but completely abandoning NATO would probably be a bridge too far I would think. We see this approach from the president on any number of fronts, with the tariffs. It also often appears to be a posturing just to get leverage to have a better negotiating position, but we'll see.
Scott Maberry:
Well, and to that point, it's odd, another two things that are seemingly disparate issues coming together in some meetings on Capitol Hill last week. I understand that there was a lot of discussion of President-elect Trump's proposals to impose really heavy new tariffs on among many, many others, goods from Canada. And Canada being the largest trading partner, that's a very significant chunk of the economy. Economists hate the idea by and large. Well, let's put it this way, it's not a mainstream economic idea that tariffs are good for the economy. The mainstream idea is that they're essentially inflationary and regressive.
But the only other real rationale form in modern policy is protectionism, which is part of what's being proposed with Canada. But to your point, there's been some discussion on the Hill that maybe some of these demands on Canada are to get Canada to raise its contributions to NATO. To bring them to the table and use the threat of higher tariffs to get Canada to put more money into NATO because if you line up all of the countries by percentage of GDP spending on defense among the NATO members, Canada is down at that end that needs to come up to get to the commitment.
Jonathan Meyer:
Yeah, that's an interesting point. I tend to think while that may be an element of it, it's probably not the main motivation here. President Trump seems to be developing a particular interest in Canada. You may have seen he just overnight I think, tweeted or on social, Trump's platform-
Scott Maberry:
On Truth Social.
Jonathan Meyer:
Truth Social, he put up a thing about Justin Trudeau being the Governor of the 51st state of the United States, which is that he had made a joking comment about that a week or so ago and now he put it on social media. So, I think there's something going on there, and it may be about more than NATO. Obviously, one of the great accomplishments of the first Trump Administration was the USMCA, the trade agreement involving Canada and Mexico. And there's a lot of talk about that coming a subject for renegotiation as well. So, he may be thinking about Canada in terms of trade and just becoming a different sort of partner to the United States.
Scott Maberry:
Yeah, I think there's some, if you go back to the theory of the Trump presidency as pursuing mercantilist goals, let's say, or maybe even more charitably just business goals. If we can as a nation force our trading partners to give us better deals on trade generally, that's going to be a win for the Trump Administration and that may be what he's seeking. And maybe the threat of tariffs, even if it is partly about getting Canada to raise its commitment to NATO, maybe it's even more about getting Canada to give us better deals on whatever the big trade issues are between the two countries. There are several very important ones. Some of them happen to do with protecting US industries like steel and aluminum and dairy. So those are kind of standard, very difficult trade issues between the two countries and maybe the subject to tariffs.
We're kind of getting away a little bit from national security, except that as you talk about tariffs, I want to bring it back to something you mentioned, which is what we've identified on this show for the last, I would say now going on a 12-year bipartisan national consensus on, well, I guess it's not right to say 12 years/ what we've identified on this show as an eight-year long bipartisan national consensus on China as an adversary in the global struggle for technological balance. And one half of dealing with that or one portion of dealing with that is export controls, which we can talk about in a minute because I think there's some national security aspects to that. And then another part of it is the tariffs, I think there will be tariffs on China that we haven't seen yet instituted in the next Trump Administration. And then the point you mentioned, which is foreign direct investment restrictions, talk a little bit about that and what you expect in that area.
Jonathan Meyer:
Yeah, so that's an area that we've already seen developments in over the past four years. We've seen a more aggressive and broader approach to CFIUS, the Committee on Foreign Investment in the United States. Particularly with regard to China, and any investment in the United States involving a Chinese entity is getting increased scrutiny. And that is something, as I mentioned, that I think is only likely to continue if not grow, as the Trump Administration and his allies, President Trump's allies are very focused on China and really, the Republican Party for quite some time, even going back before Trump's assent, has been very focused on China. So I think we are going to continue to see that and not just in CFIUS but in its related proceedings like Team Telecom and ICTS. And then all of those are only about inbound investment.
We're also now seeing outbound investment regulations and concern. The Biden Administration put out new regulation on an outbound investment relating to certain products, certain high-tech sensitive products to China. It would not surprise me at all to see that list grow. Not the list of countries but the list of items going to China. Perhaps other countries as well, but I think the singular focus of the incoming administration, in terms of national security, is going to be China above all else.
Scott Maberry:
Yeah, and that's a small picture takeaway for our audience, which is, watch out for foreign outbound investment rules. We'll have a special episode on that in the next few months. We'll get some experts in here to talk about the restrictions on investing your money in China. That has not been restricted before this past Biden Administration, it is now restricted somewhat, and we would expect it to be restricted a great deal more in the next administration.
The big picture takeaway from all of this for our audience is, we know what the policy priorities of the incoming administration are. They are the confrontation with China on the global commercial and security front and the border, and then Middle East and Russia to the extent that you've been talking about them. In all of those areas, I think we should expect some really creative thinking. As you kind of described it, the arsenal or the toolbox of foreign policy in these areas is almost unlimited. It's limited only by the human imagination. And many, many past administrations have been really careful and conservative with a small C, in the way they've applied the different ideas and tools of foreign policy and national security. This administration, among other things, is going to be characterized I think by its creativity. It's going to really aggressive and creative in finding ways to limit investment in China and exports to and imports from China, and really creative in ways to pursue its other foreign policy goals.
Jonathan Meyer:
Yeah, and I think another important thing to look for is, what will be the reaction from the targeted countries? China in particular, but others as well. I think the overall sense that people have of the way it worked last time around was that the United States threatened, sometimes imposed certain things, but the countries on the other side of that equation mostly didn't respond in kind and often ended up coming to the negotiating table. And so Trump's strategy of gaining leverage at the negotiating table worked. It seems to me we're starting to see hints that things may be a little different this time around.
Scott Maberry:
Oh, give some examples. What's on your mind when you think-
Jonathan Meyer:
So we've seen, for example, China already announcing in response to Trump's announcements about tariffs that they may be taking action, tariffs or punitive action against certain American products. Again, this is all before Trump even takes office, right? We also saw in response to a statement that President Trump made regarding Mexico, that the new Mexican President kind of hit back in a statement saying, "If you're going to hit, we're going to hit too." So I think there are some out there who are willing to test the waters. I think others are afraid to and are worried about, because the United States is still a 800 pound gorilla in world affairs and you mess with it at your own risk. But certainly in some places it appears leaders are drawing the conclusion that just as Trump thinks that the only way to gain leverage is through not a force, but through tough talk and tough action, the only way to get respect from him and to get him to back down is to be tough in response. So it's going to be interesting to see how that develops.
Scott Maberry:
Yeah, and some countries, some adversaries, some trading partners are going to be more successful at that than others. A lot of it depends on how much actual leverage you have and that's not even really country by country, but really issue by issue. There's some areas where Canada probably has a lot of leverage that it could exercise if it wanted to get tough with the Trump Administration, say with Mexico, and say with China, but there are other areas where they can't.
One area where China has clearly identified some leverage is in rare earth minerals. There was an order just last week I think, which followed on an earlier order from eight or 10 weeks ago, limiting the exports of rare earth minerals out of China. And that's significant because they exercise a near monopoly, not on the mining of those, although they've run around and gobbled up a lot of the mining interests in the countries that do have those resources. But in the process, because a lot of those processes are really dirty and dangerous. And so China's got kind of a lock on that. And so I think they've identified that as a possible area where they can take a tough position and gain some bargaining leverage there.
Jonathan Meyer:
I think that's exactly right. So they are exploring that option and in some sense this is what advocates of free markets, free international trade warn about, right? That when one side starts to get protectionist, the other side gets protectionist and pretty soon free trade dries up. Of course, the more mercantilist or if you will, Trump approach is to use that leverage and it will make the trade fairer and we'll see how it plays out. And I'm sure advocates on both sides will claim they were right. But in many ways, this is almost a classic international economic study here of how these things can play out, that each country starts out by identifying its strengths or the weaknesses of its adversary and acting there. But then as it escalates, it just grows in breadth and volume.
Scott Maberry:
And one thing that occurred to me multiple times during the election is that global elites really don't have a political spectrum. They're the global elites and they came to the conclusion in the '80s that David Ricardo was right and that John Smith's 1776 paper was right, that says that you don't win by beggaring your neighbor, you win by having free trade and specializing. That's been rejected by, well, a lot of US protectionist trade policy, but also now that's really strongly in question within all of the leadership of the new incoming Trump Administration. So we are going to see an experiment in mercantilist trade policy, and lest the audience think we've strayed again from national security, I'd remind us that trade policy is national security, particularly in the current era, particularly where the two really globally dominant players of the United States and China, who've now identified each other not as mere competitors, but as adversaries.
Jonathan Meyer:
And I do want to mention one other important national security issue that a lot of people don't realize is a national security issue that is a big issue right now, and that is artificial intelligence. It is becoming increasingly important, obviously for everybody. I mean, you can't walk down the street these days and not hear someone talking about AI. But it is increasingly important in national security too. And there's been a lot of talk among those who are in this field and focus on it, about the executive order that the president put out over a year ago on artificial intelligence. And much of that was about fostering a strong AI industry in the United States and taking advantage of the wonderful benefits that it could yield. But an entire other section of the executive order was about how it affects national security, because a country or an entity that has such a powerful tool at its disposal can do a lot of good things but it can do a lot of bad things.
And so there's really a focus on two aspects of AI in national security. The first is, how can we use it to improve our national security and use it against our adversaries? But also perhaps more importantly, how are our adversaries likely to use it against us and how can we prepare for that and defend against it? In many ways, the way people spoke about cybersecurity 10 years ago or 15 years ago is how people are talking about AI now. But AI really in many ways is an even more powerful tool, but also a weapon.
Scott Maberry:
I agree with you, and the studies coming out of the private sector and out of the Pentagon right now about AI are very eye-opening. It's going to transform the battlefield because when you start connecting unmanned systems with powerful AI, the battlefield changes radically, and whoever wins that is going to win the battle. And there's trade aspect to that too. The most recent Biden Administration export control package that came out last week, a lot of it was about further limiting China's access to US technologies for manufacturing the semiconductors that power AI. And that goes to the same thing we were talking about before, which is the nexus between national security and trade policy. Those two have merged in the last eight years in a way that was unfathomable even those eight years ago.
Jonathan Meyer:
Yeah, that's exactly right. I mean, it used to be that the world of trade was really just about economic advancement, but it has now become very much as well about economic and therefore, national security.
Scott Maberry:
Yeah, and I'll tell you that in the world of trade controls, which is kind of my professional world, there's some really interesting aspects of that that we've talked about a little bit on this show, but I think it's relevant here, and it's relevant to the point about the Trump Administration. The hallmark of this administration is going to be its creativity.
So for example, we used to think of US economic sanctions as being one type of tool that people used, and export controls as another type, and investment controls as a third type. And concepts from each of those is being borrowed and stuck into the others of them. So those three areas are kind of merging together now, and we're seeing the development of a lot stronger and more, certainly a lot more potentially powerful national security tools on trade restriction. I'd say that's probably going to start happening across the board not just in trade, but in all these areas of national security you're talking about.
Jonathan Meyer:
I think that's right, but you also still have more conventional areas of national security that continue to be important and to focus things like cybersecurity and the ability of our adversaries to get into our critical infrastructure and the like. And that will be influenced by AI too, because if you have AI as a tool, you are by leaps and bounds more able to crack the encryption or crack open the cyber defenses of your adversary.
Scott Maberry:
Right.
Jonathan Meyer:
And that's a large part of why AI is such an important national security issue too.
Scott Maberry:
And that kind of arms race between AI offensive tools and then the AI defensive tools that go along with it, that's going to drive just faster and faster development of AI as we move forward. So that sounds like a good place to leave it for today's session, because I think that's a segue into an AI focused episode coming up soon.
So, Jon, thank you so much for being with us today. It was really enjoyable and I hope to have you again soon.
Jonathan Meyer:
Great. Thank you so much for having me. It was a lot of fun.
Scott Maberry:
Thank you.
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