Advisory Opinions – “Trump’s ‘War Crimes’”

Podcast: Advisory Opinions (The Dispatch)
Date: April 9, 2026
Hosts: Sarah Isgur (A), David French (B)

Episode Overview

This episode of Advisory Opinions features a lively mix of legal analysis, Supreme Court nerd-culture, and serious discussion of the implications of Donald Trump’s recent public threats regarding Iran, examined through the lens of international law and military command responsibility. Topics include a celebrity Supreme Court moment, the evolving conservative legal philosophy regarding legislative history, birthright citizenship, and a rich, listener-fueled debate on legal liability for AI systems.

Key Discussion Points & Insights

1. SCOTUS Blog Goes Viral: John Mulaney, Supreme Court Arguments, & Comedy (03:25–12:39)

• John Mulaney’s unexpected Supreme Court nerdom: The episode begins with Sarah’s delight about comedian John Mulaney’s appearance on Colbert, where he describes geeking out at a Supreme Court oral argument and comparing listening to them to following Grateful Dead concerts—referencing his friend and former acting Solicitor General, Neil Katyal (04:38–07:16).
• Oral advocacy as stand-up: Both hosts riff on the comedic truth that advocates, like comedians, have mere seconds to grab the Court’s attention—“You have to come out of the gate really hot. You have to say, Mr. Chief Justice and if it pleases the court, and then have like a killer sentence.” (John Mulaney, via clip, 06:24)
• Memorable Moment: Mulaney quips to Colbert that after watching Katyal’s “killer” opening—“Tariffs are taxes, full stop”—he uses the same line in his standup openings (06:58).
• Discussion: Sarah and David marvel at the high-IQ, rapid recall required of both lawyers and comedians: “It’s that their brain works at very high speed...if you have to react on your feet...that’s a muscle, it’s a mental muscle...like watching LeBron at his prime.” (David, 11:31)
• Takeaway: The Supreme Court advocate and the stand-up comic: both depend on wit, agility, and preparation, skills rarely associated with the public’s stuffy image of appellate law.

2. The Threat of War Crimes: International Law, Trump, and Military Law (12:39–30:14)

Can a Threat Be a War Crime? (13:00–18:10)

• Listener Q: Can the threat of a war crime itself amount to a war crime?
• David’s Analysis: “In theory, yes. In practice, much tougher...I can’t recall a war crimes prosecution based purely and only on a threat of a war crime versus, say, Putin, for example, threatens all manner of things all the time...the indictment is based on the actual attacks.” (14:10)
• Notable Quote: “There is an independent war crime of sowing terror in a civilian population...But...a threat itself is going to be something that would be exceedingly difficult to prosecute.” (David, 15:35)

Trump’s Threats, Crimes Against Humanity, and Prosecutorial Realities (18:10–21:59)

• Sarah clarifies: Even US presidential threats likely wouldn’t be prosecuted in the Hague, “It would be very difficult for me to see the Hague indicting Trump based on a threat of a war crime alone...threatening a war crime is a relatively common behavior by totalitarian societies...Not common for American presidents.” (David, 18:10)
• David emphasizes: The type of threat from Trump would, if carried out, rise above regular war crimes: “That’s called a crime against humanity...What Trump was threatening was essentially the very thing that the US has been condemning Russia for four years.” (David, 19:55)
• Immediate Context: Only threats that are immediate and actionable (like holding a gun to a detainee’s head) are prosecuted—“That is a crime.” (David, 20:35)

The Reality (and Limits) of International Law (21:59–30:14)

• Sarah's Take: “International law only exists to the extent that someone is willing to enforce that with military force...at the end of the day, international law is might makes right.” (Sarah, 21:59)
• Data Point: ICC indictments are overwhelmingly against actors from small/weak states, not great powers (Sarah, 24:10)
• David: “Victor’s Justice”: Only defeated great powers face serious prosecution (Nuremberg, Japan: 25:45).
• Quote: “If you are a great power, you will only be held to account if you go ahead and lose a war...” (David, 26:22)
• UN’s Powerlessness if US Goes Rogue: “If the most powerful country in the world goes rogue, [the UN] cannot work.” (David, 28:42)

3. Military Law: Article 92 and Disobeying Presidential Orders (34:25–43:24)

• Article 92 defined: Failure to obey any lawful order. The key defense: whether the order was lawful (35:09).
• Chain of Command & Lawful Orders:
  • Only the National Command Authority (i.e., the President) decides to go to war; rank-and-file are not responsible for legality of the war itself (36:04).
  • Once at war, carrying out blatantly illegal orders (shooting civilians, etc.) is an individual responsibility regardless of rank.
  • The problem of recourse when the President is the one issuing the unlawful order—service members have “zero, really recourse” (David, 38:55).
• Implications: “That is to just flat out refuse to create a constitutional crisis where you actually have...the military refusing to carry out direct presidential orders. Hard to describe a more grave constitutional crisis.” (39:26)
• Memorable Quote: “Character is destiny, guys. Character is destiny. And we did not realize how much we depended on the good character...to keep this whole machine running.” (David, 41:48)
• Recent Developments: The importance of military integrity roles (JAGs, chaplains) and the troubling purges of these positions (42:11)
• Prediction: Expect stories of “fierce internal resistance” to illegal orders by the military. (David, 43:06)

4. Birthright Citizenship & Evolution of Conservative Legal Theory (43:24–55:10)

Legislative History and Scalia’s Influence (43:24–52:13)

• Oral arguments heavily invoked legislative history: Quotes from the 14th Amendment’s ratification debates used to justify both sides.
• Critique (Dylan Esper): Conservatives invoking legislative history is “Scalia turning in his grave” (44:24); Scalia’s rejection of legislative intent in statutory and constitutional interpretation influenced the whole Court.
• Clarification: Shift from original intent (“originalism 1.0”) to original public meaning (“originalism 2.0”)—judges should look at how words were publicly understood then, not what individual drafters said (48:53).
• Sarah’s summary: “The text is the proof of the meaning of the text. That’s the only thing that everyone agreed to.” (49:48)
• David’s analysis: “The public meaning has been really clear for a really long time...You’re not going to be able to overturn that by putting one senator out of...sixty or seventy senators.” (50:12)

Why Trump’s Solicitor General Appeals “Unwinnable” Cases (52:13–55:10)

• Strategic appeals differ for “Big EOs”: For major executive orders (e.g., on birthright citizenship), not appealing concedes defeat, regardless of win odds. The strategy is different than for lower-profile, interim docket cases. (Sarah, 52:13)
• David’s perspective: Trump pushes everything: “In the Trump mind, it’s always worked with Republican Congress...he’s learning...that even 'Trump judges' are not the same...not subject to the same bullying.” (53:47)

5. Listener Mailbag: AI Liability & Legal Analogy to Guns (56:57–67:11)

Who Is Responsible for Harms Caused by Advanced AI? (56:57–63:05)

• Listener q: Should corporations be held liable for the unpredictable acts of machines they can’t fully control?
• Sarah’s view: The tort system is agnostic—the widget’s unpredictability doesn’t matter if you sell it and it causes harm (58:14).
• David’s analogy: “You can create your toddler community, but you’re responsible for everything they do...assumption of risk.” (59:29)
• Notable quote: “You cannot be king of the universe, billionaire AI developers...and then go, ‘Well, look what that did’...You cannot.” (David, 61:33)

AI vs. Guns Analogy (63:05–67:11)

• Are AI companies like gunmakers?
  • David distinguishes: The AI output (e.g., CSEM) is inherently illegal, guns have legal uses (63:37).
  • Sarah pushes for a closer analogy; David says: “If a person who wanted to shoot up an elementary school asked Smith & Wesson to do it, and Smith & Wesson did it. That’s the analogy.” (64:24)
  • Both agree: If AI companies want immunity, they’ll need Congress to grant it, similar to gun manufacturers. It would be politically fraught (64:58).
  • David corrects himself, crediting AI company lawyers for likely being aware of the full risk (66:25).

Notable Quotes

• “Character is destiny, guys. Character is destiny.” – David French (41:48)
• “International law only exists to the extent that someone is willing to enforce that with military force...at the end of the day, international law is might makes right.” – Sarah Isgur (21:59)
• “If the most powerful country in the world goes rogue, [the UN] cannot work.” – David French (28:42)
• “You cannot be king of the universe, billionaire AI developers...and then go, ‘Well, look what that did’...You cannot.” – David French (61:33)
• On Supreme Court oral advocacy: “You have to come out of the gate really hot. You have to say, Mr. Chief Justice and if it pleases the court, and then have like a killer sentence.” – John Mulaney (via Colbert clip, 06:24)

Timestamps for Key Segments

• 03:25–12:39 — John Mulaney, standup, and Supreme Court oral argument as performance
• 13:00–21:59 — Can a threat be a war crime? Trump, Ukraine, and international law reality
• 21:59–30:14 — The practical effectiveness (and limits) of international law and the UN
• 34:25–43:24 — Article 92 and the dilemma for military officers disobeying unlawful presidential orders
• 43:24–52:13 — Legislative history, Scalia, and the conservative legal movement’s evolution
• 52:13–55:10 — Why the Trump administration pushes contested executive orders all the way to the Supreme Court
• 56:57–67:11 — AI, legal responsibility, and whether AI creators are akin to gun manufacturers

Episode Tone

Animated, often humorous, but always intellectually robust—Sarah and David deploy real expertise to illuminate complex legal issues, balancing constitutional gravity, nerdy tangents, and pop-culture levity.

For Listeners New to the Show

• Legal complexity made accessible: Even deep questions of international law and statutory interpretation are demystified.
• Interactive Q&A: The hosts regularly address sharp listener questions, providing practical and philosophical insights.
• Pop culture crossover moments: References to stand-up comedy (Mulaney, Colbert), LeBron, and more demonstrate the wide reach of legal culture.
• No holds barred on current events: From Trump’s rhetoric to Supreme Court philosophical shifts, the show digs in without removing the lawyerly gloves.

End of summary.