Preet Bharara:

From CAFE and the Vox Media Podcast Network. Welcome to Stay Tuned. I’m Preet Bharara.

Dan Senor:

It was a different approach from the Trump administration had taken earlier. It was a different approach than the Israeli government had taken. It’s a different approach from the Biden. I mean, no one had approached it this way, and I think that was a major contributor.

Preet Bharara:

That’s Dan Senor. He’s the host of Call Me Back, a podcast focused on Israel-related news and politics and stories affecting the wider Jewish world. He previously served in the Defense Department based in the Middle East in the early 2000s, and later, as a senior advisor to Mitt Romney’s presidential campaign and Paul Ryan’s Vice presidential campaign.

Dan Senor joins me to discuss the ceasefire in Gaza, shifting regional dynamics in the Middle East, and the prospect of a lasting piece in the region. After the interview, I’ll answer your questions about the latest developments in the Kilmar Abrego Garcia case and the unusual political message showing up at airport security checkpoints. That’s coming up. Stay tuned.

Political advisor and podcast host, Dan Senor, shares his thoughts on the latest news from Israel and Gaza. Dan Senor, welcome back to the show. It’s great to have you.

Dan Senor:

Hey, Preet. Good to be with you.

Preet Bharara:

So lots going on in Israel. I think we last had you back shortly after the attack on October 7th.

Dan Senor:

Yeah.

Preet Bharara:

Let me ask you this question so people understand where we are. We’re not done. Right? This is not, in fact, a treaty like you had at Versailles in a different context. It’s not a full on all eternity truce. Can you describe it as something other than a ceasefire and return of hostages? How would you describe where we are at this moment?

Dan Senor:

Exactly that. It’s exactly that. It’s a ceasefire and hostage deal. So the only question is a permanent ceasefire or a temporary ceasefire? That’s really the question. At its core, what both sides have agreed to is for the return of all the living hostages which has occurred.

Preet Bharara:

Yeah.

Dan Senor:

The return of all non-living hostages, which has not occurred yet, although it’s dribbling in, and I think that’s going to be a very… That process is going to be traumatic even today. I just saw a report that one of the bodies that was returned was not an actual hostage. And for a large number of Palestinian prisoners in Israeli prisons to be released.

Other than that, war fighting stops. But Israel remains, the IDF remains in 53% of Gaza. So Israel’s still present in Gaza, in essence. I mean, I can go on with some of the other details that were agreed upon, but when I think about the core pillars of this deal, it is that. Which is to say that from Israel’s perspective, if the details that should iron out the rest of this process don’t get sorted out in a way that is acceptable to Israel. Israel of course still has, as I said, the IDF is still in 53% of Gaza, the war could start up again.

Now I don’t think that will happen, or at least I don’t think it’ll happen anytime soon. So in that sense, I think this is more of a meaty and meaningful development in any other ceasefire or development we’ve seen throughout this war but simply-

Preet Bharara:

Right. By a lot. By a lot. Right?

Dan Senor:

By a lot. By a lot. And we can get into that. By a lot. But you’re right. I mean, there could be violations of the deal and if there are violations of the deal, both sides have ways to respond to that and that means that the war wouldn’t end.

Preet Bharara:

So both sides, it’s interesting you say that. Is it not the case that Hamas having given up all living hostages, and that’s been confirmed and that’s occurred as you said, and given that they’re largely degraded, if not 100% incapacitated weapons-wise and leadership-wise, what the hell can Hamas do?

Dan Senor:

Well, leadership-wise, their leader ranks are pretty weak now. I mean, the job you don’t want is, “Hey, there’s an opening for head of Hamas in Gaza.”

Preet Bharara:

Yeah.

Dan Senor:

That’s the LinkedIn post you don’t respond to because those jobs tend to get vacated very quickly. One of the many unnerving aspects of October 7th was the incredible professionalism, and I know that’s weird for me to say for a terrorist organization, but the incredible professionalism of Hamas’s fighting force. It was the equivalent of, the comparison I make is to a light infantry army of a sovereign state.

It had been organized. It had by battalions. It had a command and control structure. It had geographic jurisdictions for each of these military units. It was really well-trained and they had a couple decades obviously to do so.

Preet Bharara:

So that’s past tense. What are they today?

Dan Senor:

Right. So I’m saying, so that’s gone. So what it’s been replaced by are a bunch of mostly young, like 15 and 16-year-old boys who they’ve just been desperately trying to recruit since so many of their actual professional fighters have been killed, who aren’t really trained and they’re handing RPG launchers and Kalashnikovs to and sort of sending them in as to fight as cannon fodder, which is what the IDF has basically been dealing with for the last few months.

Now that is certainly not the threat that Hamas was on October 7th, but Hamas has not been disarmed and demilitarized. And I just want to spend a moment on that because I think it’s important. So many of these Hamas fighters, these kids still have arms. I mean, they still have the Kalashnikovs and the RPG launchers. And because of the tunnel system, the elaborate tunnel system, it’s not clear that Hamas has been completely demilitarized either because, sure, they can’t smuggle in weapons. So that’s over. They won’t be able to do that. But they still had these factories underground that were making weapons.

And because Israel doesn’t have control of, or destroyed all of the tunnel system, it doesn’t know exactly what weapons-making capabilities it still has intact. This is a long-winded way to say, I don’t want to overstate it. It’s nothing like it was on October 7th. It’s a shadow of itself. That said, if Hamas decided to get back in the business of killing Israelis, as we’re watching them right now kill Palestinians, they could do some damage a lot harder with Israel and the IDF in 53% of Gaza. But if they decided they wanted to start doing damage, they could.

Now obviously, Israel could would then respond. And so my only point is the war could start back up. It won’t be anything like we’ve seen over the last two years. But to answer your question, both sides could try to re-escalate.

Preet Bharara:

So from Hamas’s perspective, why’d they sign in the line, which is dotted here? Why now?

Dan Senor:

I think there are a few factors, some of which we know and some of which we will learn a lot in the weeks and months ahead. But here’s what I think we know so far. One, the decision by Israel, by the Israeli government, and I want to make this point very clear because there’s a distinction here.

The decision by the Israeli government to declare that it was going into Gaza City. I think history will look back at as a turning point. Gaza City, which is just for your listeners, it’s a city inside Gaza. So it doesn’t represent the entire strip, the entire Gaza Strip. It is one of the areas in Gaza that was largely, not entirely, but largely untouched during this entire war.

It is where most of the decision makers for Hamas were based. It is where many of the hostages were being held. It’s largely why Israel didn’t go into Gaza City because hey were worried about risking the hostages. And for Gaza, for the Gaza and Palestinians and for Hamas, Gaza City is like their… If you think about it in World War II terms, it’s their Berlin or it’s their Moscow.

It was like that they could not see Gaza City fall. It was like Fort Gaza City to protect it to its death and it was to their death. And they were successful in doing it largely because Israel did not go in here. After almost two years of war fighting, the Israeli government says, “We’re launching a new operation and we’re going into Gaza City.”

And everyone, and when I say everyone, everyone was hysterical about this. Obviously, Hamas was hysterical about it because you saw the number of hostage videos they started releasing right after Israel announced that to say, “Look who’s here? You sure you want to come here? You’re going to risk their lives.”

And they said explicitly, if Israel comes into Gaza City, they’re risking the lives of these remaining hostages. So Hamas reacted. The international community reacted. You had virtually every European government, the UN. I mean, everyone saying Israel cannot go into Gaza City. You had much of the Arab world saying Israel cannot go into Gaza City.

And what got the least attention, but I think was the most important is Israeli society was divided on this. I mean, I saw some surveys that had a majority of Israelis saying, “We should not go into Gaza City. This war has to end. The risk to the hostages, Israel cannot go into Gaza City.”

And even the IDF, the IDF chief was apparently arguing against going into Gaza City. And the Israeli government, again, totally isolated on their own. Then Netanyahu said, “We’re going into Gaza City.”

Now, what do we know now? We know that once Israel made clear that they could not be restrained by going into Gaza City, and here the US government was key, because I think all these actors thought that US administration would rein in Israel and not let them go into Gaza City. And the administration said, “No. They have a green light. They can do whatever they want.”

Once Hamas realized they’re coming into Gaza City, which meant two things. One, Gaza City was at risk. Gaza City could fall. And then Hamas is really, if they have any hope to live another day, if Israel takes over Gaza City, they controlled the entire Gaza Strip. And B, and this is the really uncomfortable part to talk about. It was the first time, and I got to be careful how I say this because it could be taken out of context, but I think they conveyed, the Israeli government conveyed for the first time to Hamas, the Israeli hostages are not the leverage you think they are. That you’re telling us by coming into Gaza City we risk the Israeli hostages. Guess what? We’re coming into Gaza City.

And so I think that Hamas suddenly started to realize, “Wait a minute. We’re going to lose Gaza City. Our ability to restrain Israel is nonexistent or try to get others to put pressure on Israel to restrain itself. And the hostages, which we thought were an asset, may be a liability.”

So I think the Gaza City operation, Israel making clear was going into Gaza City changed some of Hamas calculus. I think, and this is counterintuitive, but I think history will also look back at the failed IDF operation in Doha as a turning point.

So the narrative is that Israel tried to kill Hamas in Doha and it failed and it was a setback for Israel. True. At the same time, another thing is true. When I spoke to officials in Doha, Qatari officials, when I spoke to officials in other Arab countries in Abu Dhabi, in the UAE, in Saudi, there was a sense after the Doha operation was, yes, the Israel-Hamas War is controversial in the Arab world, but it’s politically a problem for us and these other countries. But the actual violence and instability is actually quite contained at the Israel-Gaza border.

And suddenly when the IDF launched an operation in Doha, by the way, 30, 40 miles away from, not even from the US base there. The message it’s sent to all these capitals is the fire could start spreading in this region. We think we’re fine here in Abu Dhabi, in Doha and Riyadh, and this thing could take weird twists and turns and we need to wind this down. So I think that was a turning point.

And then the third, and so I know the Arab governments, but let’s just say Qatar and Turkey, really, and Egypt to some degree, at that point, we’re putting huge pressure on Hamas to do a deal. And then to me, the biggest factor here was, and I don’t know if it was a stroke of genius or a stroke of just rolling the dice and see what happens. But the US and Israel became fixated on the idea that we are done doing deals where hostages get trickled out like in previous deals.

There’s a ceasefire, and then every week, a couple… Period of six weeks, and then a few here and a few there, but we’ll keep some. And the Israeli government and the US government said, “We’re done doing that. The only deal we’ll consider is all hostages out at once at the beginning, at the beginning of the ceasefire.” Not to see if Israel, quote-unquote, “complies with the ceasefire.” But actually all the hostages at once.

And the US and Israel have been pushing that. And many people, including me thought, “No way. Fool’s errand. There’s no way Hamas has ever going to agree to that.” And then the Arab governments started pressuring Hamas for the reason I said earlier, pressuring Hamas to do the deal, even if it was that.

And Hamas said, as they often do, they said, yes, but. Now previously when there have been deals often that have fallen apart, Hamas said, “Yes. We agree.” And they got the headline that says, “Hamas agrees to deal.” And then they would say, but, and then the details would be all these things that were impossible for Israel to agree to.

And here what President Trump did, which I was struck by is he said, “I’m going to focus on the, yes. We’ll get to the details, but the fact that Hamas for the first time has agreed to release all the hostages at once, I’m going to jump on that. I’m going to bank on that. I’m going to say we have a deal and then I’m going to send Witkoff and Jared and whomever else to work out these other details. But I’m taking yes on the 20 hostages back now.”

And that was a different approach. It was a different approach from the Trump administration had taken earlier, is it a different approach than the Israeli government had taken. It’s a different approach from the Biden… I mean, no one had approached it this way. And I think that was a major contributor.

Preet Bharara:

So my question is then, so it seems that was a move on Hamas’s part of weakness because that’s one of their last remaining points of leverage.

Dan Senor:

Yeah. Right. It was their only currency.

Preet Bharara:

If you point out one of the reasons not to go into Gaza City, which is the last bastion of protected sovereign territory in the war, that reason is now taken away. What is the understanding of Hamas now? And what do you think the proclivity of Israel is now and the IDF is now if there’s a severe breach on Hamas’ part of the agreement, is Gaza City on the table or is it not?

Dan Senor:

No. I think Hamas’ calculation, so I think the Gaza City operation crystallized for Hamas that they were about to lose everything and included the last piece of territory that was valuable to them. And now you could say and I could say, and I do believe that Hamas, they look like the biggest losers in this entire deal. Israel looks to me like a winner in this deal. The Palestinian people, which we can get into look like a winner in this deal. The Arab world looks like-

Preet Bharara:

Right. Well, it depends on what looks like what winning and losing is, and we’ll get to public sentiment in the United States and elsewhere about Israel.

Dan Senor:

Fine. The Arab world, I think were largely winners in this deal. But from my standpoint, Hamas was a loser in this deal. And that’s what I’ve been saying. Now friends of mine in the Palestinian intelligentsia in the West Bank, not in Gaza, have made the point to me. Yes, you’re right, that they are, from our perspective, a loser. But the one thing they get to do now that they may not have been able to do had the war kept going is at least now they can say, “We launched the biggest massacre on the Israeli people on October 7th. We killed more Jews in one day than any day since the Holocaust. We launched this incredible war.”

And all these other countries that have been at war in some kind of war against Israel or proxy armies or whatever they are, are gone. Hezbollah gone. The Iranian regime, emasculated, gone, impotent. The Houthis severely weakened and probably gone soon. I mean, they can just go down the… Syria, the Assad regime in power for 53 years, gone.

All these other countries, satellites, proxies, whatever, gone. We’re still here. Yeah. We’re severely weakened, but we’re still here. We can climb out of the rubble and say, “We’re still kind of around.” And that in and of itself is a soft win that they may not have had, had Israel kept going into Gaza City. So that may be their calculation.

Preet Bharara:

So let’s talk about whether they’ll rise from the ashes. As you point out earlier in the conversation, they’re not completely armless, weapon-free. I saw the President of the United States say a few minutes ago on television, “They need to disarm. If they don’t disarm themselves, we will disarm them.”

Dan Senor:

Violently. Violently.

Preet Bharara:

Violently. Usually, it’s not done over the game of poker.

Dan Senor:

Right.

Preet Bharara:

But okay, so what does that mean? Does Trump mean it and who is we?

Dan Senor:

Yeah. So the we could be any of the following. The we, I do not think will be the US military. The we could either be the IDF. As I said, they’re still in a big chunk of Gaza and they could turn back military operations if they so choose, and if it’s blessed by the US. The we could also be this international stabilization force that’s going in, which is…

Now it’s not clear exactly who’s going to be serving in the stabilization force. The conventional wisdom is that it’ll be some combination of Emirati and Egyptian military personnel. I think there’s going to be other countries doing most of the fighting in that international stabilization force. I’m not sure exactly which, but I think there are countries that aren’t on our radar, third party-

Preet Bharara:

How large will that be? How large will that be? And how large does it need to be?

Dan Senor:

They don’t know yet. They don’t know. I mean, if you think there’s about two and a half to three million people in Gaza, if you look at… So the comp I use when I was working for the US government in Iraq after, in 2003. So we were presented with a study by the RAND Corporation soon after we arrived in April of 2003, that showed that if you look at the history of successful occupations, US-led successful occupations going back to Germany and Japan after World War II, going back to the Balkans. I mean, you can just go throughout history.

The average ratio of local population to occupational forces providing security and stability in successful occupations was 20 to one. 20 local population for every single soldier. When I was in Baghdad-

Preet Bharara:

So I could do the math quickly in my head, so what does that mean?

Dan Senor:

Well, let me say this. If one of the catastrophes in Iraq in 2003, was when things really spiraled out of control, kind of April, May, June of 2003, the ratio and I was there. The ratio of local population say in Baghdad to US forces was 700 to one. So that was a case study if you don’t have enough presence, you can’t.

So I don’t think it has to be 20 to one to have that kind of, because I don’t think it applies to all of Gaza. I think there are pockets of Gaza that will need real security attention. And there are other pockets of Gaza that won’t. In fact, one scenario here that the IDF has contemplated, and there are many who are champions of this idea. If you look at the area of Gaza that Israel is staying in, so that 53% is to start the rebuilding and the reconstruction and the empowering of local Palestinians in those areas right away so you can create pilots of what a normal non-Hamas civilian authority looks like that is protected by the IDF and protected by the international stabilization force.

And then that could be a model for other parts of Gaza. So you don’t have to wait on to see what happens in Gaza City, which means you would only have to really apply this international stabilization force to small pockets outside of that 53%.

So I don’t know the exact numbers, but you’re going to need tens of thousands.

Preet Bharara:

Tens of thousands.

Dan Senor:

The bottom line is you’re going to need tens of thousands of security personnel. And I don’t believe that the Egyptian or Emirati people are going to be okay with their loved ones getting killed fighting with Hamas in Gaza. So I don’t think they care about Gaza. I don’t think they really care about the Palestinians, and they certainly don’t want their sons and brothers and fathers dying in Gaza to help the Palestinian people.

So this to me is one of the real quirks here in terms of figuring out who the hell is going to be doing this actual… Because someone’s going to have to go into Gaza day to day and be willing to confront Hamas as it tries to reassert itself.

Preet Bharara:

What is going on with these reports that members of Hamas are carrying out summary executions in Gaza in the streets?

Dan Senor:

It’s real.

Preet Bharara:

What is that about? What is being done about it? Do the Israelis have a stake in it?

Dan Senor:

What’s going on is, so Hamas is trying to re-establish itself as we’re still in charge here. Yes, we look severely weakened. Yes, we look like we just lost a war, but back to my earlier point, they want to climb out of the rubble say, “We’re still here. And not only are we still here, we’re still basically in charge.”

Preet Bharara:

Right. Do you believe it’s organized or do you think it’s like people settling scores? It’s like their one-offs or-

Dan Senor:

Both. Both.

Preet Bharara:

… is it a campaign? Yeah.

Dan Senor:

I think it’s both. What’s left of Hamas as an organization wants to clearly make a point. And then I think there’s a lot of score settling. Look, I think there are many Palestinians over the last two years who have either supported or stood up and said, “We can be an alternative to Hamas and Gaza. We can be a post-Hamas post-war governing force.”

So I think there are some people who did that. I think there are other Palestinians who may have cooperated with the Israelis in some way. So either way, Hamas is saying, “We now have to make a statement and anyone who cooperated with Israel has to be killed. And anyone who tried to build an alternative political movement in Gaza, alternative to Hamas has to be killed, or anyone who may have supported a political movement that was rising up has to be killed.”

So they’re going about it. And these summary executions are chilling. I don’t know if you’ve seen any of the videos.

Preet Bharara:

I have not.

Dan Senor:

But obviously, the press is less interested in those now because Israel is-

Preet Bharara:

I’ve cut down on that kind of viewing lately.

Dan Senor:

Yeah. But they’re chilling to watch. And so I actually worry, Preet, that this stuff can spiral out of control, the summary executions and take on a life of its own. And suddenly the impression will be that Hamas is back in charge and everyone should be fearful of them and shouldn’t cooperate with anybody, the international stabilization force or anyone else. So I don’t think we have a lot of time in letting that carry on.

Preet Bharara:

Can you tell our listeners, who is Marwan Barghouti?

Dan Senor:

He’s a prominent Palestinian leader who was arrested, who was put in Israeli prison, I don’t know, some 20 years ago. I can’t get the exact year. He was viewed both as one of the architects of many of the terror attacks against Israelis over a number of years. He’s very articulate. He’s very charismatic. He has a real following among the Palestinian people as a serious political leader and public intellectual. And he’s an Israeli prison.

Preet Bharara:

Right.

Dan Senor:

He’s in Israeli prison.

Preet Bharara:

But still. So he wasn’t-

Dan Senor:

Yeah. And they want him out. Hamas wants him out as part of this deal. And Israel said, “No.” Israel vetoed that because-

Preet Bharara:

Why is that?

Dan Senor:

Because he’s a dangerous, first of all, I mean, well, he’s a dangerous combination.

Preet Bharara:

Unlike the other folks?

Dan Senor:

No. But he has a real political following. He’s dangerous combination of someone who’s a monster and could instantly become the new Sinwar, have a hold over the Palestinian people because of his combination of, like I said, he’s a monster in terms of what he’s done, the slaughtering he’s been responsible for, and the public connection he has with the Palestinians.

If we’re serious about de-radicalization, the last thing you want to do is suddenly embolden and empower someone like Marwan Barghouti [inaudible 00:25:47]

Preet Bharara:

So I don’t know a lot about this man, but there are people who are not insane who have advocated for his release and think that he could provide some leadership, not in the way that you describe, are they off base?

Dan Senor:

I mean, that is the consensus among the Israeli security establishment. And like I said, they are not all… Among this Israeli security establishment there are very balanced, very analytical experts who are really thinking this through. And it is the consensus that Barghouti is dangerous.

And there’s so much thought that goes into these releases now because Israel so got burned in 2011. Keep in mind in the 2011 prisoner exchange where Israel released, to get one Israeli hostage back, Gilad Shalit, to get one hostage back, Israel released 1,027 Palestinians from prisons. 1,027 to get one back, and among those was Yahya Sinwar.

And I can get through what he did once he got back from Gaza. It wasn’t just October 7th. He also did a lot within the Hamas and changing Hamas’s approach inside Gaza that was a real innovation. And it was partly because he had a real connection with the Palestinian people in Gaza.

So there are many in the security establishment in Israel who feel like we cannot take these kinds of risks and we’re not interested in these kinds of debates. Will he be constructive? Won’t he be constructive? Because of their experience with Sinwar in 2011, they’re not interested in debates and taking risks.

Preet Bharara:

I will be right back with Dan Senor after this. Can we now take a moment to do an assessment of the roles of the various parties in getting us to this point?

Dan Senor:

Yeah.

Preet Bharara:

Start with the American side, and I’ll throw the bunch of names at you, Donald Trump, Jared Kushner, Mr. Witkoff, and Mr. Rubio. From where you sit, and you talk to a lot of folks, who deserves credit here? Particularly Jared Kushner, I’m curious about, because we thought he was kind of not in the business of government anymore. He wrote this 25 books some years ago. I don’t know if he added to the reading list, discuss.

Dan Senor:

So I think Jared was the unsung hero of the Abraham Accords in 2020. And I don’t think they would’ve happened without him. And I think he was the unsung hero of this deal. And I think he played a unique role. And Witkoff too played this role part of, but I think the combination of the two was critical for the following reason.

Middle East leaders are very accustomed to American diplomats coming over saying, “I’m here to solve this problem. I’m here to solve that problem.” And they are people who have been working on these issues for decades. And they know these Arab capitals are very accustomed to these people coming and going. And they know that by and large, with some exceptions, they know most of these people don’t really speak for the president.

Yes. They’re a representative of the president, but it’s not this deep visceral connection that the president has with the diplomat representing them. And they know that these presidents have these huge national security teams and cabinets and layers and layers of foreign policy [inaudible 00:29:19]

Preet Bharara:

If you’re the son-in-law, you’re in a different position.

Dan Senor:

Different relationship. Right now, I think, by the way, one exception to all of this, two exceptions I actually think were Kissinger and Nixon and James Baker and George HW Bush. I think that the region understood that James Baker and George HW Bush were genuinely, genuinely close.

Preet Bharara:

And to a lesser degree, I thought you were also going to mention, and maybe this is not born out, but in a different and smaller context, perhaps Bobby Kennedy and John Kennedy.

Dan Senor:

Totally.

Preet Bharara:

Yeah.

Dan Senor:

No. No. No. Absolutely. Right. So that’s it. I know from Arab leaders from the first Trump administration, when Jared would go around the region, they just treated him differently because they know about what Trump feels about family. I know his relationship with family members and the extent to which he will give cover for family members and the extent to which he will, when a family member says they’re there to speak for the president, they know it’s a different setup than just some undersecretary of state rolling in.

And so Jared, I know there was this perception for the last few months that Jared was kind of out of this Trump term. He was in the first one, but he was out of this one. I did not believe that was going to be the case. I knew that was not going to be the case. I knew he was going to be involved with Witkoff. He and Witkoff are very close.

He, Witkoff and Trump, the three of them are very close. Jared was involved with, and wasn’t the decision maker, but he was very involved with the president’s decision to appoint Witkoff. And so Jared was very involved working with Steve and kind of traveling to the region quite a bit quietly.

And then Jared stepping in when he stepped in, given all those other factors I said earlier that were kind of lined up. Then Jared coming in and saying, “Now’s the time and I’m here to tell you it’s the time.” And I’m so committed to telling you it’s the time that Witkoff and Jared are going to sit with Hamas and tell them that directly.

And so it wasn’t they were just dealing with Arab governments. So I just think Witkoff with the close personal relationship to Trump, Jared as the family member of Trump and the region knowing that they really do speak for Trump. This is not just sending some diplomat around, played a huge role.

Preet Bharara:

Is there some lesson to be learned from the fact that Jared obviously had a special relationship with the president, but he was quiet in the diplomacy and he wasn’t doing press conferences and he wasn’t seeking the Nobel Peace Prize openly and he was behind the scenes? Is that always the better approach or was it in combination with the much more ambitious public facing, some would say self-indulgent, self-interested approach of the president? How do you grade diplomacy as behind the scenes effort versus otherwise?

Dan Senor:

The feedback I would hear from Arab officials who were dealing with Jared was that, as he was working with them and he was spending a lot of time with them in ways that never got reported and obviously there was never the scenes of the massive State Department military plane landing in Riyadh or landing in Doha and the official coming off and making a press statement. There was none of that.

It was just that he would slip in and out of these places over the last few months and have many conversations. And the characterization I would hear from these Arab officials was, it wasn’t like Jared was narrating the process publicly. Often you get from these government officials that they’re narrating it. Like, “We just had a good meeting. Here’s what we discussed or are about to have a good meeting-

Preet Bharara:

Here’s the readout.

Dan Senor:

… or here’s what going to to accomplish. Here’s the readout and here’s…” Or they don’t do it officially on the record, then there’s all this leaking and this took some time to get to the point that we were at. And the narrating just undermines it, because then the leaders in these governments have to be responding to the narration and the narration kind of shapes the mood and shapes the conversation and that’s what they’re responding to.

And with Jared, they just had this direct line, and from their perspective, they might as well have been talking to the president when they’re talking to Jared. And Trump, by the way, himself, yes, he has these big boisterous, declarative statements, but the reality is he wasn’t really narrating much throughout this.

I mean, from time to time he would say things, but he wasn’t really put out these posts. But he wasn’t really narrating it the way we think of when… And by the way, I think I have some issues with how the Biden administration handled some of the year that they were in office for much of this. But generally speaking, I think they did a lot right. But I do think there was too much they were playing out publicly that was unnecessary, and I think it undermined the process.

So in that respect, Preet, I think the quiet diplomacy, super low-key, you’re never going to read about our conversations in the press, you’re never going to read about me in the press was extremely helpful.

Preet Bharara:

Yeah. I ask it to sort of in the larger context of having been told repeatedly, and in leadership circles and when they train folks, the saying goes, “You can get a lot done and a lot accomplished if you’re not looking to get the credit.” You have contrasting styles among his team. You mentioned Trump, how about Rubio in this?

Dan Senor:

Look, Rubio is I think important for two reasons. Obviously, Jared and Witkoff had the brief, the primary brief here on resolving this, as did Jared in the first Trump administration. So Mike Pompeo was Secretary of State through most of that into the Abraham Accords. And it was understood that Jared was the primary person.

I think Rubio understands that here too, that Jared and Witkoff were the primary holders of that, the managers of that brief. But I do think because Rubio’s stock has gone up so much in this Trump administration, and he’s charge of so much, which he’s in charge of the State Department, he’s in charge of the National Security Council.

Preet Bharara:

[inaudible 00:35:10]

Dan Senor:

Yeah. Exactly. He’s-

Preet Bharara:

Trump said about Rubio. The best Secretary of State ever. And pointed out, I think this is fascinating, pointed out this is a guy who was very mean to me back in 2016. And to me, not to jump to domestic politics, which is what I cover a lot more and I have more knowledge of.

It’s like a lesson to everyone, or a roadmap for everyone. Even if you hated me, even if you mocked me, even if you talked about my private parts in a particular way, even if you compared me to Hitler, like JD Vance, if you see the light, you can become the Vice President of the United States, you can become Secretary of State. All you have to do is see the light. Anyway, I just find that kind of interesting.

Dan Senor:

I actually don’t think it’s just about seeing the light. I think that because there are folks who’ve seen the light and the Trump is fine with them, but it doesn’t mean that Trump gives them an enormous amount of responsibility and power. I think Rubio has the added advantage of being competent.

Preet Bharara:

But you’re not forever dead to him. Like the point is you’re not forever dead.

Dan Senor:

Yeah. You’re right. That’s right. That’s right. I think Rubio has the added advantage of being very competent. So he feels comfortable just giving Rubio a lot of responsibility. So I think Rubio in the region has been doing a lot while Jared has been kind of, and Witkoff are very focused on the narrow brief of the resolution of this war. But I think Rubio plays another role.

I don’t want to call it narration, but the public jousting on this issue has largely fallen to Rubio. Meaning, he’s the one going on the Sunday shows. He’s the one engaging with the media, making the case for the administration’s position, which is different than narrating.

Preet Bharara:

I was going to say, was he narrating?

Dan Senor:

No. He wasn’t narrating.

Preet Bharara:

Okay.

Dan Senor:

He wasn’t narrating. But for instance, when the European states all lined up supporting Palestinian statehood this past summer and into September, which was a extraordinary setback for ending this war. Because it was at that time that Hamas was weakening and weakening and weakening, and the US government felt that Hamas was about to fold.

And then all of these European states came out and said, “We recognize Palestinian statehood.” With zero conditions. We recognize Palestinian statehood with no condition about release of hostages, and with no condition that Hamas leave Gaza. Nothing. Hamas basically stays intact, the hostages stay in Gaza. We will recognize Palestinian statehood, which sent a message to the world and to the Palestinian people that October 7th was going to be the Palestinian Independence Day.

And I thought that it was an enormous setback because the Hamas felt, “Wait a minute. Pressure’s mounting on Israel here, not on us. We’re actually delivering the goods, so why would we cave now?” And Rubio went out on TV over a long stretch of time, just slamming this push towards the Palestinian statehood.

So he did the kind of public… It’s not jousting, but it’s just making the administration’s case for its position. And he was doing a lot of that public jousting in a way that I think was helpful in resetting the terms of where the debate was going. And two, I think Trump liked it. I think Trump liked watching Rubio go out there and make the case. So I think it strengthened Rubio in Trump’s inner circle.

Preet Bharara:

You mentioned the Biden administration, two or three weeks ago, I had Tony Blinken in your seat, and I’m paraphrasing. This was right when the plan had been proposed, the 20-point plan. And he said more or less, this was the Biden plan effectively and it was taken off the shelf. Fair statement?

Dan Senor:

I think there are a lot of elements of the Biden plan in this plan. It’s true. It was taken off the shelf. The two most important parts that were not in the Biden plan was release of all the hostages at once upfront, right away, from when the pen is signed. And two, Israel being able to stay in Gaza indefinitely for a very long time.

And I think those two issues is what got Israel over the hump. I think absent those two issues, Israel would not have been comfortable doing the Biden plan. And I also think there’s something else going on. I think that this required Arab world buy-in and Arab forces being willing to go into Gaza in some ways, I said earlier, regardless of we can debate how much fighting they’ll actually do.

And I don’t think near the end of the Biden administration, the Arab forces, especially the Emiratis were prepared to go into Gaza on the back of a Biden plan. I’ve heard this from Emirati officials.

So I think the Biden team worked on this plan, a version of this plan, but I don’t think it had all the pieces that would’ve been necessary to get everyone involved, including the Israelis. And I think Hamas was just in a much different place at the end of the Biden administration than it is now.

I mean, Hamas had much… I mean, think there was no Gaza City operation, there was no Doha operation, there was no Iran, the war against Iran. I mean, just think, by the way, we haven’t even talked about Iran in this conversation.

I think June of 2025, Israel and the US taking out Iran, you think about it from Hamas’s perspective. Why did they feel so isolated? And it wasn’t just that Israel had kind of taken over most of Gaza, with the exception of Gaza City. It’s that all its sponsors and sister organizations were gone. Hezbollah, they couldn’t count on from the North. Syria, they couldn’t count on. Tehran, they couldn’t count on.

So I do think just saying, “This was our plan and our version of our plan, and we could have done it then.” It misses how much had changed since Biden had left office that just changed the environment. You can’t just do a counterfactual like that. You can’t say, “Well, we could have done it sooner.” Why did decision-makers make the decisions that they did now versus then? There were a whole range of contextual factors that had changed. And fairly or not, a lot of these factors were not in place when Biden Biden was president.

Preet Bharara:

No. Now that’s fair. So I asked Tony Blinken about this poll from Times/Sienna that found a majority of Americans, voters now oppose sending additional economic military aid to Israel. And sort of most dramatically, possibly 40% of voters in America said Israel was intentionally killing civilians in Gaza. Nearly double the number of voters who agreed with that statement in the 2023 poll. Multiple part question. What do you make of that? Was that any factor in getting us to this point? And third, what does Israel do to improve its reputation here and elsewhere?

Dan Senor:

There’s a lot there. I’m alarmed by what we’re watching in terms of American public opinion in the poll you cite and others.

Preet Bharara:

Are you surprised? Alarm and surprised are different.

Dan Senor:

Yeah. Am I surprised? There has never been a war covered in the media the way this war has been covered? Right? I mean, there’s never been a war that has been, the intensity minute to minute. I mean, the only other war I can think of in modern history that has been covered in the press in this omnipresent 360 degree, 24/7 way was the Vietnam War and there was no social media then.

So imagine the Vietnam War with social media. Imagine the Vietnam War with TikTok. So this war has been covered like no other and-

Preet Bharara:

Well, the Americans, there are a lot of bad things that happened in the Vietnam War on the American side. Are you drawing that parallel as well?

Dan Senor:

Well, that makes your question, I mean, I’ve been thinking about that because it makes it even more complicated because the difference between the Vietnam War and the American War, there are many differences.

One of which was American kids had skin in the game, right? 56,000 Americans were killed in the Vietnam War. These were young kids who could have been in American colleges. And so, even though I disagreed with some of the tactics and the whole protest movement at American colleges during the Vietnam War was… I don’t want to get into a whole analysis of that, but you can understand it. You can understand why American kids during the Vietnam War were opposed to Vietnam War because it was their buddies, it was their pals that were being called up, or it could have been them.

What skin did American college kids during the Israel war in Gaza? What skin did they have in the game? No one was asking them to fight. So in that sense, it had all this intense coverage in a way that did not connect to the daily lives of these young kids here, and yet the young kids here were obsessed in many of these campuses with this issue.

And I think there’s something much deeper going on. This war had a cultural aspect that most wars don’t have. Most wars, we talk about the Russia-Ukraine war, right? And I care a lot about the Russia-Ukraine war, and we follow the Russia-Ukraine war, but it doesn’t touch the cultural nerve in our society the way this war did. There was something going on here that people cared about it, even though they didn’t have skin in the game, even though they didn’t know much about it, they never followed the issue. They somehow got really, really engaged. And I-

Preet Bharara:

What is that thing? What is that thing?

Dan Senor:

Well, I’m going to be completely, like, we’re having a very frank conversation here. I think a lot of it is anti-Semitism that was beneath the surface, that once October 7th happened, it drew out this anti-Semitism that for the last 80 years in the United States, we have not really seen, maybe we’ve seen it from time to time, but we haven’t-

Preet Bharara:

Do you think some of the anti-Semitism resides in the hearts and minds of young Jewish Americans?

Dan Senor:

No.

Preet Bharara:

Who are among the people you would find on the wrong side of this poll?

Dan Senor:

I think it’s the tiny percent. I think that the press overstates the young Jews that are turning on Israel. I don’t want to suggest it’s zero, but I actually think it’s a much smaller percentage. They get outsized attention because there’s no better spokesperson for the anti-Israel movement from the critics of Israel than to have a Jew saying things as stridently as the critics of Israel. But I actually think when you look at it numerically, it’s actually a tiny percentage.

And typically they’re people who’ve kind of disconnected from Judaism generally. But I want to say something else. It’s not just anti-Semitism. I don’t want to say it’s just anti-Semitism. It’s not just anti-Semitism. I think there’s something else going on, which is probably beyond the scope of our conversation.

To me, the question when I see these critics of Israel who are represented in that poll you’re citing. The question I want to ask them is how they feel about America, not how they feel about Israel. Because I suspect there’s a major overlap among those who have very, the people marching in the streets and these protests and all the rest against Israel, I suspect if you ask questions about how they feel about America, about America’s founding, about America’s role in the world. I bet they have positions that are as hostile to America as they do about Israel. And it’s interesting when you watch all these protests over the last-

Preet Bharara:

We don’t know that thesis. We’ll see if you can show that thesis to be true. But certainly there’s a category of person-

Dan Senor:

But I just want to say I think that intense criticism of Israel is like a proxy for a vessel of attitudes by young Americans towards America. That’s all I’m saying. I’m saying it translates. It’s an outlet. It’s an outlet for feelings about America.

Preet Bharara:

Yeah. But a reasonable and good faith question that some people might ask is, I don’t know the answer, and people form their own conclusions about the answer. But the question is, did that many civilians, did that many innocent people have to die in this effort?

Dan Senor:

It’s a great question and I want-

Preet Bharara:

And it’s not being asked by people who are anti-American or who are self-hating.

Dan Senor:

I know. I know.

Preet Bharara:

It’s a reasonable question, right?

Dan Senor:

It’s a reasonable question. So Sarah Hurwitz, who you may know, who is a former speechwriter in the Obama administration. She was the chief speechwriter for Michelle Obama, and she has written two books about Judaism since leaving the administration. And her most recent one, both of them are excellent. I highly recommend her most recent one.

And it’s called As a Jew. And she writes a lot about Israel in it. And I had her on my podcast and I said to her, you travel to these campuses, I traveled to campuses too, but she’s probably has more credibility with some of the folks on the left than I do. And I say, “What do you want them to understand about Israel?” And she said something, and so I’m not ducking your question, but I do want to quote her. She said, “I want them to understand that Israel is a country. Israel’s a real country, okay? It’s a real country. Now it happens to be a country that’s been under siege. It’s a country that’s fighting a seven front war. It’s a country whose mere, like its actual existence. It’s not a country surrounded by oceans like we are and has neighbors like Canada, and it’s a country in a very dangerous region, and it’s fighting a war for its existence on all fronts with some enemies that are trying to build a nuclear bomb who are very explicit to appointing that nuclear bomb if they get it at Israel.

And so it’s trying to remove these threats. And it doesn’t mean it does everything perfectly. It doesn’t mean it’s totally innocent in how it tries to defend its existence. It’s a real country. And so real countries do something’s right. Real countries make some mistakes.”

So if you look historically, Preet, in terms of the ratio in a war of combatants to civilians, right? If you look at the total population or subpopulation of people killed in a war, and then you say to them, “How many of them are combatants that were killed? And how many are civilians?” This is military experts and historians always look at this in various war fronts. And they point out that in this actual war, based on Israel’s data and the Gazan Health Ministry’s data, to the extent it’s reliable, most of the number of combatants killed by Israel was far higher as a result among that population that was killed than in most other wars, including wars America has fought.

So does that mean that too many civilians died? Absolutely. Does it mean that it’s out of whack or exceptional or an outlier to any war that any Western country that we would want to be sympathetic to and defend has reached? Absolutely not. In fact, it’s much better.

So what does too many mean? I don’t think Israel killed, quote-unquote, “too many.” If you compare Israel’s data to any other country’s data, whether it’s America in Mosul and Fallujah or America in World War II, or America in the Korean War, or we can talk about France and other countries.

I mean, wars are messy. Wars are ugly. Civilians get killed. It’s not like Israel sat there one day and said, “We’re going to turn the dial and kill more Palestinians this month.” This is the nature of warfare, and Israel is a real country fighting for its life, waging a war in an urban environment, which is the hardest environment to fight a war in, against an enemy that is happy to supply its citizens, its civilians to be killed.

It’s a mess. It’s a mess of a situation. It’s a problem from hell. So if critics of Israel want to tell me how they would deal with this problem in a less hellish way, I’m all ears. But to just say-

Preet Bharara:

They probably have some suggestions.

Dan Senor:

Which would be what?

Preet Bharara:

I don’t speak for them.

Dan Senor:

Israel goes away? I mean, no, really? It’s an amazing… But they don’t have suggestions. That’s the problem, is they don’t actually have a concrete way of how Israel removes this threat in a very messy environment, surrounded by enemies, and therefore do even better than it was already doing in terms of the number of Palestinians, civilians it had killed relative to the overall population of those killed.

I mean, here’s one way to think about it. What made this war so unique is you have two enemies fighting each other. Now in most wars, each side wants to impose as much harm on the other side’s military as possible, while protecting their civilian populations and their own militaries. Okay?

So Russia, Ukraine, right? I am not defending Putin here. I’m not apologizing for Putin at all. I’ve been fierce critic of his. But I don’t believe he actually wants the Russian people to die. I don’t think he views it as an advantage as a component of his strategy that if a lot of Russians get killed, it can be used as a PR tool for us internationally.

That is explicitly what Hamas was doing. They were saying, “We want to maximize pain and suffering for the Israeli military, and we want to maximize pain and suffering for the Israeli people, and we want to maximize pain for the Palestinian people because that serves us in generating international support for what we’re doing.”

It’s an impossible situation. It’s a miracle that more Palestinian civilians weren’t killed.

Preet Bharara:

I guess all I will say, and I don’t take one side or the other, and I’m not steeped, an expert in these things. But the example is you gave, let’s take World War II, and lots of civilians were killed by the United States of America. We carpet bombed Dresden, Germany. We dropped atomic bombs on two cities in Japan.

Dan Senor:

And before we even do that, we firebombed Tokyo.

Preet Bharara:

Yeah. No. Right. Right. But even 80 years later, it is a subject of good faith debate. People can have a view, maybe there’s a consensus view on the part of historians. Could the war have been fought without doing those things? Could the war have been won without doing those things? Could have been won on the same timetable without doing those things?

All I’m suggesting is I believe there is good faith debate even on those questions of how the US itself, our country, your country, my country, behaved in Germany, Japan, and other places. Would you concede to these people that in the years going forward, there might be a good faith debate on this question with respect to this war as well?

Dan Senor:

The key phrase you said there is good faith.

Preet Bharara:

Right.

Dan Senor:

Absolutely. The problem is I can’t-

Preet Bharara:

A lot of people bad faith. I know. That’s-

Dan Senor:

Well, no. No. No. It’s not just that. It’s not just that. It’s that the discussion around this debate has been framed by terms like genocide, apartheid state. If that’s how you’re talking-

Preet Bharara:

I didn’t use that. You notice I didn’t use that word.

Dan Senor:

No. I know you didn’t. I know you didn’t. Which is why the way you framed it was actually, I’m happy to have that debate and that discussion. I will say this, and this is me being less clinical and less analytical and being a little emotional. Over 900 Israeli soldiers were killed in this war. Okay?

As a percentage of Israel’s population, Israeli society. More Israelis served fighting in this war than the percentage of Americans fought in World War II. Okay? It touched every part of Israeli life. But I think about those 900 plus Israeli soldiers who were killed, most of whom were killed after October 7th. After October 7th. Okay?

So they were killed fighting in Gaza. If Israel was really committed to some kind of genocide, or even less than a genocide, had zero care for Palestinian civilians, they would’ve just done what we did in our firebombing of Tokyo or what we did in our obliterating and flattening of Dresden. They would’ve just done it from the air. They have a very capable air forces we’ve seen, and they could have flattened Gaza, killed everyone they needed to kill, and I’m sorry that a lot of Palestinians got killed too.

That would’ve been the safer, easier thing for the IDF to do. And today, we’d have between five and 600 of those 900 plus Israeli soldiers alive. Okay? So it makes me crazy when I hear that there’s some sort of intent by Israel to have imposed so much pain on the Palestinian people and to subject the Palestinian people to this human catastrophe, because they certainly made mistakes, and they certainly did some things I would’ve advised doing differently, and I’m sure even now they would’ve done differently. But on balance, they basically tried to fight this war as responsibly as possible.

And if someone wants to have a debate about whether or not they lived up to that or whether or not at a practical level things could have been done differently, I’m happy to have that discussion. But the beginning of that discussion can’t be Israel has genocidal intent because that’s just intellectually unserious and actually deeply offensive.

Preet Bharara:

I’ve had guests on the show who talk about what happened in Northern Ireland, obviously it’s very different, in other parts of the world where people learn how to live together. I seldom talk. My wife is Jewish, my mother-in was born in Tel Aviv, so that’s part of my family too. I guess, can we end on something positive?

Dan Senor:

Can I just respond very specifically, and then we’ll end something positive because I’m Jewish. I don’t want to rush to the positive. I want to dwell on the negative a little bit.

I want to say that I hear this Northern Ireland example a lot. And I think I would ask your listeners to think about is what’s distinctive about this war from virtually all these other examples in history that people point to is the Northern Ireland, the IRA terrorism was a tool, terrorism was a tactic. What makes Hamas distinctive is it’s not a tool or a tactic, it’s actually its existence.

It makes clear that its existence is to destroy and eliminate the Jewish people. When all these European countries were recognizing the Palestinian State in the summer in September, and they would say, like Keir Starmer and Macron they would all say, “Oh, this is a setback for Hamas that we’re doing it.” No. It wasn’t. Hamas is not against a Palestinian State. They’re happy to have a Palestinian State. They just don’t want a two-state solution. They want a Palestinian State-

Preet Bharara:

Just the one.

Dan Senor:

… and no Jewish State.

Preet Bharara:

Yeah.

Dan Senor:

Right.

Preet Bharara:

No. I totally agree.

Dan Senor:

You’re dealing with a different animal here. That’s all.

Preet Bharara:

Yeah. So people who mentioned that tend not to dwell on the intractability of the Middle East problem because that’s not very hopeful. So say something hopeful about how this may pave a path to something more lasting in that region.

Dan Senor:

I think we are about to see, and I think it’s going to happen more quickly than people realize. I think you’re going to see relations normalized in the region between Israel and more and more countries. I think the three to watch for are Indonesia, which is not directly in the region, but it’s a Muslim nation.

I think Indonesia, Syria, and ultimately Saudi Arabia. And I think once Saudi Arabia and Israel normalize relations, it is effectively the end of the Arab-Israeli conflict. Saudi Arabia is the most important country in the Middle East, outside of Israel. And when there’s a peace agreement between Saudi and Israel, one of the… Doesn’t get enough attention.

One of the miracles of the last two years is that the Abraham Accords countries, primarily UAE and Bahrain, their embassies are still running and functioning in Tel Aviv despite the war the last two years. If there was ever a pressure test against the enduring strength of the Abraham Accords, it was these last two years. And they have survived and I think more countries are going to be added to them.

And I think within a decade, we will have a Middle East that… I’m not saying there won’t be flare-ups in the Israeli-Arab conflict, but by and large, the Egyptian-Israel peace agreement has now lasted over 40 years.

Preet Bharara:

True.

Dan Senor:

The Jordan-Israel peace agreement was signed in the mid-90s, and yes, there are tensions and there are problems. It’s held. The Abraham Accords has held through this war. I think as more and more countries are added, the direction of travel is only going to be in one direction and that’s what I’m hopeful about.

Preet Bharara:

You’ve been very generous with your time, Dan. I appreciate your frankness as always and I’ll see you soon. Thanks so much for your time.

Dan Senor:

All right. Great. Thanks.

Preet Bharara:

My conversation with Dan Senor continues for members of the Cafe Insider Community. To try out the membership, head to cafe.com/insider. Again, that’s cafe.com/insider. Stay tuned. After the break, I’ll answer your questions about the latest developments in the Kilmar Abrego Garcia case and the unusual political message showing up at airport security checkpoints.

Now let’s get to your questions. This question comes from an ex-post by Wild Wallaby-Twenty-Nine. Who asks, what are your thoughts on the finding in the Kilmar Abrego Garcia case regarding possible vindictive prosecution, especially given that part of the argument references Todd Blanche’s interview on Fox News the same day Abrego was arrested?

Well, Wild Wallaby29, that’s a great question. The term vindictive prosecution has been used quite a bit lately and expect it will continue to be used as more cases get brought. We have the case of James Comey, the case of Tish James, and now in the Kilmar Abrego Garcia case. So let’s discuss what it actually means.

So the doctrine of vindictive prosecution is essentially a legal safeguard that prevents the government from bringing charges to punish someone for exercising some right. For example, if a defendant turns down a plea deal and the prosecutor responds by adding extra charges just to retaliate, that could be a textbook case of a vindictive prosecution.

And if a judge determines that a prosecution is vindictive, one possible remedy is to dismiss the charges altogether. It’s rare, but it happens. To remind you, in Abrego Garcia’s case, he was deported to El Salvador despite a court order barring that deportation. Afterwards, he sued the government in Maryland arguing that his removal was unlawful.

In essence, he was exercising a right. The Supreme Court ultimately agreed that the government had to facilitate his return to the United States. And as you may remember, there was a lot of debate, much of it not in good faith, about the meaning of the word facilitate. Not long after that ruling, the Justice Department and the Department of Homeland Security reopened a long dormant investigation tied to a 2022 Tennessee traffic stop where Abrego Garcia had been pulled over with several passengers. That stop did not result in any charges at the time, but soon after the Supreme Court’s order, federal prosecutors charged Abrego Garcia with human smuggling offenses.

They alleged that he had transported undocumented migrants across state lines. So the timing of that charge raised eyebrows. Were prosecutors acting in good faith because they believed a crime had been committed, or were they retaliating against Abrego Garcia because of his lawsuit and a Supreme Court victory in effect for his exercise of a right?

Relatedly, was the government trying to save face after official after official promised that Abrego Garcia would never set foot on American soil again? So in that case, US District Judge Waverly Crenshaw, who was overseeing the case in Nashville, ruled that there was enough evidence to at least explore the question. And earlier this month, he granted a motion from Abrego Garcia’s lawyers and ordered discovery in an evidentiary hearing to determine whether the prosecution was illegal retaliation.

And as you noted, a striking piece of evidence that the judge cited, a couple of times, was an interview Deputy Attorney General Todd Blanche gave to Fox News. Judge Crenshaw wrote that Blanche quote, “Told the public on television on the day of Abrego’s arrest that the government started investigating Abrego after a judge in Maryland questioned the government’s decision to deport Abrego, found that it had no right to deport him and accuse the government of doing something wrong.” End quote.

Judge Crenshaw described those statements as remarkable. Writing that they, quote, “Could directly establish that the motivations for Abrego’s criminal charges stem from his exercise of his constitutional and statutory rights rather than a genuine desire to prosecute him for alleged criminal conduct.” End quote.

So for now, the judge hasn’t thrown out the case, but he’s allowing Abrego’s team to dig deeper into whether this prosecution was in fact an act of retaliation. That hearing, which we’ll pay close attention to, is right now scheduled for November 3rd, 2025. We’ll be keeping an eye on this case and as you might imagine, a wave of other cases and I’m sure we’ll have more to say about it when that hearing takes place. Stay tuned.

This question comes from a post on X from Dana. We’ve been hearing about several unusual no bills coming out of the Washington DC grand jury. How many times can prosecutors bring the same case to a grand jury? Is there a limit? And can they try with a different panel?

Dana, that’s a great. And you’re right. What’s happening in Washington DC is very unusual. When you refer to a no bill, of course, what you mean is grand juries rejecting proposed indictments from prosecutors. According to recent reports, grand juries in DC have declined to indict an at least eight cases. That’s a lot.

Three of those eight involved a defendant named Sydney Laurie Reid. She was accused of assaulting an FBI agent during a protest against immigration officials in DC. Federal prosecutors reportedly presented that case to three different grand juries, and each time the jurors returned a no true bill. Meaning, no indictment.

Dana, you may be surprised to learn that there’s no legal limit on how many times prosecutors can take the same case to a grand jury. In theory, I suppose, they could present the same evidence to many different panels if they wanted to. That’s one of the big differences between a grand jury and a trial jury. If a trial jury acquits a defendant, that’s it. That’s the end of the case for all time. Why? Because the double jeopardy clause of the Constitution prevents it. But double jeopardy doesn’t apply to grand juries because a no bill isn’t an acquittal, it’s just a decision not to indict.

So legally, prosecutors can try again with a new grand jury. However, there are Justice Department guidelines. The Justice manual itself tries to guard against this kind of grand jury shopping. Section 9-11.000 of the Justice manual says the following, quote, “Once a grand jury returns a no bill or otherwise acts on the merits and declining to return an indictment, the same matter i.e the same transaction or event, and the same putative defendant should not be presented to another grand jury or resubmitted to the same grand jury without first securing the approval of the responsible United States attorney.”

So it’s technically legal, as I said, but there are strong prohibitions and guidelines and rules and approvals required before you go back to the grand jury and certainly before you go back to another grand jury. And what’s the reason for this?

Well, as you might imagine, the policy is in place to uphold fairness and public trust in the whole process. It respects the grand jury’s role as a safeguard against unfounded charges, and it tries to ensure that prosecutors use their discretion responsibly rather than again and again and again trying to bypass a grand jury’s decision by seeking a more favorable panel.

Remember, the prosecution already has countless advantages in the grand jury. The defendant is not present. There’s no cross-examination. It’s a fairly one-sided presentation. And if you can’t get a grand jury to indict in those circumstances after a good faith presentation, the probability is your case is not worthwhile.

And by the way, even if you do succeed in the second attempt or the third attempt, that’s a big hint. It’s a hint and a half that your trial evidence before a trial jury may be unlikely to suffice. So if you can’t persuade a grand jury that there’s even probable cause, that’s a pretty good sign, your evidence isn’t going to cut it at trial.

So folks, since the government shutdown began, we’ve been getting a lot of emails about a curious new message showing up on several federal websites. Listener Tom wrote in to ask, at the time I’m sending this email, the US Department of Housing and Urban Development has a banner on their website that reads, quote, “The radical left in Congress shut down the government. HUD will use available resources to help Americans in need.” End quote.

I was generally under the impression that it was not legal for government officials to make statements of a highly partisan nature. So my question, is this legal? Another listener, Aaron, took it a step further and emailed us asking if these types of messages are violations of the Hatch Act. Both of you have very keen legal instincts and understand fair play.

The Hatch Act was passed in 1939 to make sure the federal government stays nonpartisan and to ensure that government officials should serve the public, not a political party. Former Governor of New York, Mario Cuomo, once famously quipped, “You campaign in poetry and you govern in prose.”

I could paraphrase that in this context and say, “You campaign in partisanship, but you govern in neutrality.” The law bars most executive branch employees from using their official positions to influence elections or promote partisan interests. What that means is they can’t engage in political activity while on duty in a government office wearing an official uniform or using government property such as throwing partisan events at the White House.

That means they also can’t use their authority, their official appointed or elected authority to help or hurt a political candidate or party. For example, by sending campaign emails from work, posting partisan messages on a government website or playing political videos at TSA checkpoints in airports.

You may have seen, as the one listener pointed out, the messaging blaming Democrats specifically for the ongoing government shutdown. It’s gone beyond website banners. Homeland Security Secretary Kristi Noem, reportedly pushed for airports to play a government produced video with that same deeply partisan message at security checkpoints.

Several airports, I think, to their credit, have refused to show it. Citing concerns that airing the video could violate the Hatch Act. Not that anyone seems to be enforcing the Hatch Act lately, in any event. So if an agency posts a message like the radical left in Congress shut down the government on its official home page, or tries to broadcast a video with the same message in say, an airport. That crosses from policy communication into partisan advocacy because these platforms are funded, maintained, and controlled by the federal government and are funded by all of our tax dollars, not just Republican tax dollars or Democratic tax dollars, using them to promote or attack a party amounts to using taxpayer resources for a political purpose. That’s exactly what the Hatch Act forbids.

Now I don’t know whether anyone will actually face disciplinary action over these messages. Enforcement of the Hatch Act may be a quaint thing of the past, but if the government did choose to pursue it, the Hatch Act can have teeth. Penalties can range from a simple reprimand to suspension, fines, or even removal from federal service in more serious cases. But again, don’t count on it.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Dan Senor. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag AskPreet.

You can also now reach me on Blue Sky, or you can call and leave me a message at 833-997-7338. That’s 833-99-Preet, or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network.

The executive producer is Tamara Sepper. The Deputy editor is Celine Rohr. The supervising producer is Jake Kaplan. And the CAFE team is Matthew Billy and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.