Julia Gegenheimer (3:16)

To say from the outset that we're not going to do anything. I believe Todd Blanche, the deputy attorney general, made a statement that there was no basis for a federal investigation here. That really just flies in the face of years and years, even decades of best practices.

Mark Joseph Stern (3:35)

And we have not forgotten about the landmark arguments at the Supreme Court about who can be discriminated against in school sports. For our Slate plus bonus episode, I'm digging into the arguments in the big Title 9 trans athletes case that was argued Tuesday speaking to a lawyer who used to write the guidance at the Department of Education's Office for Civil Rights.

Skye Perryman (3:57)

The statutory text of the law itself that was passed in 1972 actually says nothing about sports.

Mark Joseph Stern (4:05)

You can Sign up for Slate Plus@slate.com amicusplus if you want to join us. But first, the over under on the Insurrection Act. Yes, President Trump has threatened to invoke it before, and maybe this is like those times. But his lust for soldiers enforcing civilian law in America's streets has been thus far constrained by the courts, possibly making this 200 year old law more attractive to an administration clearly frustrated by the organized efforts of Minnesotan civilians trying to protect their immigrant neighbors and document the violent excesses of the federal government's masked agents. Steve Laudick is a professor of law at the Georgetown University Law center and is a nationally recognized expert on the federal courts, the Supreme Court, national security law and military justice. His substack One first is utterly indispensable reading. Steve, welcome back to Amicus.

Steve Vladek (5:05)

Thanks, Mark. I made the grave mistake of writing my student note in law school about the Insurrection act and I am paying the price.

Mark Joseph Stern (5:12)

Wow. A mistake that reverberates through the decades, I see. And so here we are today. Just to start with the absolute basics, tell us, what is the Insurrection Act?

Steve Vladek (5:24)

Yeah, so part of the problem is that it's not actually one statute, it's four. And it's not actually only about insurrection. The Insurrection act is the common, if misleading name that we've given to a series of statutes that trace all the way back to 1792 that are carrying into force Congress's constitutional power to provide for the calling forth of the militia, and then later the military to suppress insurrection, to repel invasion, or as most relevant here, to, quote, execute the laws of the Union, unquote. And you know, Mark, the idea was that Congress should be able to allow the president to have very narrow but very poignant, you know Important circumstances where he could use military support and military force as a backup when civilian order and civilian law enforcement has broken down.

Mark Joseph Stern (6:17)

So the idea was that it would be used in narrow circumstances. But the language, especially that last part that you read, is actually fairly broad. Tell us about how presidents have invoked it in the past, because it seems like, for the most part, they've actually been pretty restrained and not just used it like Trump wants to use it whenever he sees an alleged problem he wants to fix through military might in American streets.

Steve Vladek (6:41)

Yeah, I mean, so the history of the Insurrection act is a history of pretty responsible usage of a statute that, as you say, Mark, could be interpreted if you just read it in a vacuum, actually, as a remarkably broad delegation of power to the president. So, you know, we've had, I think, somewhere around 30 invocations of the statute across American history, but the Last one was 34 years ago when President George H.W. bush used it to help send troops in during the Rodney King riots in Los Angeles. But, Mark, one of the things about those 30 invocations is that although they might have been, in some cases, politically controversial, they really weren't legally controversial. So just to take one example, when President Kennedy sends troops into Mississippi in 1962 to protect not just James Meredith, the first black student at the University of Mississippi, but the 300 law enforcement officers who were there with him, that was politically controversial because the south didn't want them. It was not legally controversial because those guys were at perilous risk of being lynched, and Mississippi local and state authorities were not exactly helping. Part of the problem here, Mark, is that presidents have been responsible. Historically, presidents have usually had compelling factual basis for invoking the Insurrection Act. The Insurrection act hasn't been used as sort of like a permanent way to deploy troops into our cities. Like, these deployments have been brief, and they've been, for the most part, effective. And, Mark, even the Justice Department, which is not exactly shy about claiming power for the president, has taken a very narrow view historically of when they can use it. I'm quoting here from a memo that Nicholas Katzenbach wrote in 1964. He says where no court order is involved, reliance must be placed on the premise that those engaging in violence are either acting with the approval of state authorities or have, like the KKK in the 1870s, taken over effective control of the area involved. Those are pretty narrow circumstances for calling out troops. And I think we've been lucky historically that presidents have shied away, even in circumstances that might have fit the statute, but not that Understanding.

Mark Joseph Stern (8:50)

So it sounds like you don't think that the protests in the Twin Cities right now actually give Trump legitimate grounds to invoke the insurrection.

Steve Vladek (9:00)

I don't even think it's close. I mean, now, I think, again, this is the problem of folks who are coming to this history new and don't know the backstory and haven't read the Katzenback memo and don't appreciate the sort of historical pedigree here. Because you could read the statute and say, oh, well, if I squint a little, one protester throwing a rock at an ICE officer, or protesters pouring water on the streets in front of where the ICE vehicles come out of the federal buildings. Right? That's interfering with law enforcement. That's impeding it. That's making it impossible for them to carry out their duties. But the Insurrection act is not about private conduct. The Insurrection act is really about circumstances where the states themselves are either unwilling or unable to enforce their laws, not federal law, or where they're the ones who are specifically thwarting federal law enforcement.

Mark Joseph Stern (9:53)

So where does that principle come from, if not directly from the text? Because, again, that. That last provision does sound really broad. Is this a sort of avoidance reading to shy away from constitutional problems that would arise if it were used differently? Is this sort of gleaning it from context and historical use? Where is that coming from?

Steve Vladek (10:11)

I think it's a little bit of both. I mean, so again, part of the problem here is that the history is a little complicated because it's not one statute, it's four. And so you have the statutes that Congress enacted in 1795 and 1807, which were the predicates, which were actually much, much more limited. Then you have the 1861 and 1871 statutes. I mean, Mark, the last time Congress touched this regime, besides a brief, weird sort of try something and then undo it in 2006, the last time Congress touched this regime was 1871, when it was dealing with the KKK. I mean, the statute is literally known as the Ku Klux Klan act of 1871. And I think the key here is that these powers were given to presidents with an understanding that they weren't pretexts, that you actually had to have real resistance to federal authority, not just by sort of people in a state, but by the state. Because otherwise the assumption is that the state can carry out its own law enforcement, the state can arrest people who assault federal officers, the state can clear roadways. Right? I mean, like, this is. The point is that there's supposed to be at least some argument either that the state wants the federal assistance, and here we know it doesn't, or that the state is responsible for the inability of federal officers to carry out their law enforcement duties.

Mark Joseph Stern (11:30)

So just to lay it out, based on all the facts we have at hand now, you don't think that the state of Minnesota is interfering with federal law enforcement or obstructing federal law enforcement in the way envisioned by the Insurrection Act?

Steve Vladek (11:42)

I mean, not only do I not think that, but if you. Even if you look at what the Trump administration is saying, every time they point to an example of something bad happening to an ICE officer. Right. Or something bad happening in these protests, the culprits are protesters, not state officials. Right? I mean, President Trump can mouth off about, you know, the mayor and the governor and all that, but they don't actually have any specific examples of any policies or any episodes where it has been the state and local governments that have been the reasons why ICE has been in any way impeded. And, Mark, if it were otherwise, if one person doing one thing to impede an ICE officer from carrying out their duties was sufficient to justify an invocation of the Insurrection act, then all protests would trigger the Insurrection Act. That's not how we've ever understood the Insurrection Act. It would not make any sense with First Amendment values. The founders who wrote these statutes would be horrified at that perspective. I mean, it's just. That's the problem. Now, the trickier part, which I think we'll get to in a second, is what will the courts do? But, you know, before we get to our friends on the Supreme Court, I think it's worth laying out the. There's just. There's no historical precedent for invoking the Insurrection act in these circumstances.

Mark Joseph Stern (12:55)

And just to linger on this for one more beat, it sounds like your saying we should be very worried if Trump invokes the Insurrection act here, not just because of what happens on the ground, but because he has now shattered the precedent set by the federal government and the Justice Department that this is not to be deployed against ordinary protest activity or even protest activity that is getting out of hand. As long as the state is still doing its job, more or less, of exercising its police powers. And it would just shift a massive amount of discretion to the president to say, I see a protest I don't like, I'm sending in the military.

Steve Vladek (13:28)

Right. The Insurrection act is supposed to be about breakdowns in authority and not protests of the federal government. Just one really quick last thing, because I think there's a little bit of confusion out there, largely because I don't think President Trump understands this. Even if we had. Right, Mark, even if we cross that Rubicon, and even if there is an invocation of the Insurrection act, it's worth stressing that like, that's not like martial law. In the 30 examples historically when presidents have invoked the Insurrection act, all that the military is doing is the same law enforcement that. That other federal officers could already carry out. They're bound by the same limits. Right. The first, the fourth, the Fifth, the Eighth Amendments all apply. If anything, Mark, the military probably has even better and more enforceable limits on their law enforcement powers than ICE does. And so it's not that, like invoking the Insurrection act is tantamount to military rule. The danger is the slippery slope that you were alluding to. The danger is that we start sort of normalizing the circumstances in which we're comfortable putting troops on the streets in a context that has historically been understood to be deeply corrosive to civilian control of the government.

Mark Joseph Stern (14:34)

We didn't talk Posse Comitatus. The Posse Comitatis act generally bars the military from enforcing domestic law in American streets. Right?

Steve Vladek (14:44)

It does. But the Posse Comitatus Act, Mark, as you know, is really more of a clear statement rule than a. Than a categorical restriction. And so when it was enacted in 1878, it was enacted with exceptions where the sort of the default is that it is unlawful to use the military to enforce federal law unless it is specifically authorized by the Constitution or an act of Congress. And, you know, Mark, the specific act of Congress that Congress was thinking of in 1878 when it wrote the Posse Comitatus act, was the Insurrection Act. Right. And so when you have a valid invocation of the Insurrection act, that necessarily overrides the Pasa Comitatus Act.

Mark Joseph Stern (15:26)

So let's dive into the legal aspect here, and I want to hear first how the Supreme Court's decision in the National Guard case may have inadvertently or not, sort of led us to a place where Trump is threatening the Insurrection act, because this was something you and a lot of others flagged when that decision came down. So how does that sort of lead us to this moment?

Steve Vladek (15:47)

So this is the Justice Kavanaugh view of the world. Right? So, so in the Illinois National Guard case, the fight was over this other statute, 10 USC Section 12406, which authorizes the federalization of National Guard troops. So, Mark, not the regular active duty military. When the President is unable with the regular forces to carry out the laws. I've thought all along that Marty Lederman was right and that the regular forces there means the army, not ice. And Justice Kavanaugh, like a lot of commentators said, well, if that's the case, aren't we just encouraging the President to invoke the Insurrection act? Well, historically, no. 12406 has been on the books, Mark, since 1908. And no one has ever suggested that the correct reading of that statute has led to more invocations of the Insurrection Act. What is missing from this conversation is the role that the state is supposed to play first when there is some crisis that local law enforcement is not able to handle. Mark, the first reaction is not for the President to send in troops. The first reaction is for the governor to send in the National Guard. This is the system we have and have had since the beginning of the 20th century. And so part of what has been missing all along is that there's this intermediate step where we expect states to restore order themselves, and then the federal government is the backstop when the states either can't or won't. That's the framing here. Now, to the notion that, like, because President Trump couldn't use 124 06, he's more likely to invoke the Insurrection Act, I think that's a bit circular because what he was trying to do with 12406 was very much the same thing. And so to say, like, oh, he might now do this other thing, Mark, by the logic you're hearing from the President and his supporters, he could have invoked the Insurrection act all along. Yeah, right. And there's a reason why he hasn't yet. And it's not because 12406 was somehow this better, more available authority.

Mark Joseph Stern (17:44)

So what is the reason?

Steve Vladek (17:46)

I actually think there are two, and I think one is political and one's legal. So the political reason is that there really, I think, still are political obstacles to invoking the Insurrection act even in our current moment. Right. That he would invite blowback, even, I think, from some members of the Republican caucus in Congress. Not many. Yeah, but Mark, given how razor. But given how razor thin the Republicans margin is in the House right now, it wouldn't take that many votes. Right. To really upend all of this. And then the legal part is I think there's probably some folks who are wary that the facts, as they currently stand, make it at least somewhat questionable whether they will win that case versus a scenario where there's a more visible, say, unprovoked assault on an ICE officer or state official who is directly involved in impeding ice. Like, I think that might be the pretext they're looking for.

Mark Joseph Stern (18:35)

More in a moment with Steve Vlahnik.

Skye Perryman (18:37)

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Mark Joseph Stern (21:15)

And we're back talking about the Insurrection act with Steve Vladek. As of this taping, the Insurrection act has not yet been invoked. If it is, there will be a legal challenge. Of course it will go up to the Supreme Court. What will that challenge look like? And, and do you really think it'll have a chance of prevailing at this scotus? I mean, maybe the National Guard ruling gives some cause for hope, but there has been a lot of chatter about the unreviewability in courts of presidential decision making in this area. Is there also a chance that justices could say we just don't have authority to overrule the Commander in Chief on this?

Steve Vladek (21:50)

I don't think it will go quite that far. What I worry about more, Mark, is a ruling that says that the President's entitled to a whole lot of deference and that not that the courts are powerless. I don't think John Roberts is going to put his name or even sign without his name, an opinion that says we are powerless about anything. But I do worry that then we would have the issue that we thought we had in the Illinois case. I mean, until the court issued that supplemental briefing order in the Illinois National Guard case, we were having very much the same fight, which is, you know, the lower courts made a series of factual findings that are inconsistent with what the executive branch has said is the factual basis for invoking 12, 4 06. Do the courts have the power to do that? And I think folks were rightly nervous that the Supreme Court might have at least stayed those lower court injunctions in that case. That will be the fight. Now. This is why, Mark, I think the facts actually are going to matter. You know, is there more of a factual basis than what we have, as you and I are sitting here Friday morning, for invoking the Insurrection Act? If and when the President does it, does the district court or district courts, do they make factual findings that are actually well supported by the record and would be difficult for the Supreme Court court to run away from? Like, part of the devil's gonna be in the details here.

Mark Joseph Stern (23:05)

So it sounds like you think the justices really don't wanna call Donald Trump a liar.

Steve Vladek (23:11)

Or at least. Or Mark. Mark. At least six of them don't.

Mark Joseph Stern (23:13)

At least six of them don'T. And one of the great things about Marty Liederman brief in the National Guard case is that it gave the court an out. They could say, no National Guard, at least under these circumstances, but they didn't have to say Trump was lying. And so with the Insurrection act, there's kind of A similar conflict where in order to block the deploy military in the Twin Cities, the court's probably gonna have to say that Trump and a lot of executive branch officials and law enforcement officials are not telling the truth about what's happening and they're really hesitant to do so. But there's no magic out here the way that there was in the National Guard case by, you know, a leaderman brief that simply says, oh, it turns out that you have to try to send in the military first before you can send in the National Guard. They're just gonna have to confront these lies head on.

Steve Vladek (23:58)

Yeah. I mean, the only thing I can imagine, Mark, is a universe in which even the factual proffers made by the Trump admin administration could be held insufficient. The only way that I could see the Supreme Court ruling against Trump without second guessing him is an opinion that says something along the lines of even assuming all of this is true, that's still not enough for the Insurrection Act. Let me put it this way. I have no faith that Justice Kavanaugh would join such an opinion. I have no faith that Thomas Alito or Gorsuch would join such an opinion. And so we're back to where we are so often in these cases, which is where are the chief and barriers.

Mark Joseph Stern (24:31)

And where do you think they are?

Steve Vladek (24:34)

I don't know. Let me start with the most important point. I've been wrong about both of them before. I'm heartened by what happened in the Illinois case. I mean, I think that is the sign that, contra the charge from Justice Jackson, it is not just a reflexive rule for the Trump administration instinct that's governing their votes in these cases. But, Mark, I do think that it's going to really depend on just how divorced from reality the Trump administration's factual arguments are, and that this is why I think they've been waiting for something more than, you know, the Renee Goode incident, for something more than, you know, a couple of suspects resisting an ICE arrest. I think they're waiting for something that they can pitch plausibly as a completely unprovoked act of violence and, or interference by a local or state law enforcement officer.

Mark Joseph Stern (25:23)

Yeah. You know, people often say, cynically that Trump does whatever he wants and doesn't listen to his lawyers. And I actually don't think that's true. Specifically. Specifically, when it comes to stuff that could reach the Supreme Court 100%, I think he is very cautious when dealing with any issue that's gonna go to the justices to make sure that he and his lawyers have A solid basis for convincing five or six of them.

Steve Vladek (25:46)

I mean, there's a reason why they haven't invoked the Insurrection act as we're sitting here yet.

Mark Joseph Stern (25:51)

So let's say he does, and there's gonna be a period if he does, if. Before this goes to the Supreme Court and, you know, before a court blocks it. So. So first question. What exactly does invoking the Insurrection act do to state and local authority, especially if, as here, state officials oppose federal intervention, but also are not committed to obstructing it?

Steve Vladek (26:16)

So the short answer is nothing. I mean, this is, I think, a really important point. You know, what it would mean overnight without any judicial intervention is that in addition to the. I think it's now, what, Mark, 3,000 ICE officers who are on the ground in Minnesota, there'd also be some troops. And the troops might be with the ICE officers. The troops might be doing things on their own. But, Mark, those troops would have ordinary law enforcement powers. They could arrest based on probable cause. They can search. They can execute search warrants. I mean, all of those things, you know, as I think I alluded to before, there's a chance the troops actually might be far more restrained than the ICE officers we've seen. And so, like, the overnight issue, I think, is not. It's not like you'd wake up in the morning and civil liberties in Minnesota would no longer exist, but it would be a much larger federal presence, even larger than it already is. It would be more people on the streets with guns. And it would be a remarkably new precedent for what the president might try, Mark, in other contexts, including maybe as we get closer to elections.

Mark Joseph Stern (27:20)

So what constitutional rights would be most immediately at risk? I mean, I hear you saying it's kind of complex because troops might be better behaved than federal immigration officers. It still seems like sending the military into American streets could threaten free speech, free assembly, due process. I guess also on the other side, you've got state sovereignty, which, at least until recently, the Supreme Court assured us was a matter of great constitutional importance. Are those things in peril once the Insurrection act button gets pushed?

Steve Vladek (27:50)

So, at the risk of saying something controversial, I think the state sovereignty issues, when the Insurrection act is lawfully invoked, are necessarily overridden. Right. And so, like, I mean, take the Mississippi example from 1962, again, you know, obviously, President Kennedy sending troops into Mississippi to desegregate the University of Mississippi was a massive intrusion into the sovereignty of Mississippi. And, Mark, we didn't care.

Mark Joseph Stern (28:16)

Yeah, Mississippi deserved it.

Steve Vladek (28:18)

Well, or at least at the very least, right Mississippi was failing to enforce federal law itself, and therefore. Right, like Mississippi was failing to abide by federal law, therefore, it lost any state sovereignty or constitution argument. The precedent we're setting here, or we would be setting here, is overriding state sovereignty in a context in which the state had not been responsible for the undermining of federal law. And I think that's not necessarily, Mark, a constitutional line. It is certainly a historical one, and, you know, one that I think would set an ominous precedent going forward if it were upheld.

Mark Joseph Stern (28:52)

What about individual rights? I mean, surely sending uniformed soldiers into the streets is going to have at least some chilling effect on freedom of speech and assembly, right?

Steve Vladek (29:00)

I think that's certainly true, although I think we're already seeing some of that from ICE in Minnesota. You know, the stories I'm hearing about people who won't leave their homes. Right, that's true. Whether they're wearing an ICE patch on their, you know, sleeves or whether they're wearing a flag. I guess, you know, the First Amendment issues are significant. I think the larger challenges. Those would be as applied challenges, Mark. Right. Those would be like if the troops are behaving in a way that is sort of especially interfering with. With speech, assembly, et cetera. I really think the facial challenges are going to end up being more statutory than constitutional because for better or for worse, the constitutional accommodation here is that there are circumstances where the federal government is allowed to trample on the states. And so the real question, I think, is, are these the circumstances in which Congress has authorized that? And that's where I think much of the battle will be joined.

Mark Joseph Stern (29:51)

So if the troops are deployed, what exactly are the rules that govern their use of force? And how are those different from rules that govern ordinary civilian policing to the extent there are any rules that govern federal immigration agents these days?

Steve Vladek (30:04)

Well, there are rules. They're just not enforced.

Mark Joseph Stern (30:07)

Right.

Steve Vladek (30:07)

I mean, ICE has. Right. ICE has excessive force regulations. They just don't follow them. So, you know, the military, Mark, has its own rules of engagement. There are rules that are specific to the military about what they can and can't do. I would say, Mark, it's probably likely that the military is better trained about when they can and can't use potentially deadly force than isis. But, you know, I think the reality is those rules are going to be hard to litigate for the same reasons that they've been hard to litigate in the ICE cases. It is no easier to obtain, for example, damages because the military has violated your constitutional rights than because ICE has, if anything, that's even harder.

Mark Joseph Stern (30:43)

We know back in 2020, in Trump's first term, he wanted to know whether the military could shoot protesters in the legs.

Steve Vladek (30:50)

No.

Mark Joseph Stern (30:52)

Okay, okay, good, good. Clear answer on that. Maybe you should be advising the president, Steve.

Steve Vladek (30:57)

That wouldn't be good for my blood.

Mark Joseph Stern (30:58)

Sure. Trump's former Defense Secretary, Mark Esper told NPR that he stayed in his job at that time because he was worried about what might happen if he left. Pete Hegseth now has that job, which is, frankly, terrifying. We've already seen these illegal boat attacks that have not carried any accountability so far, but somebody was prepared to pull the trigger up to and including, reportedly, a double tap. What message does all of that send to members of the military who may now be deployed against their fellow citizens?

Steve Vladek (31:32)

It's a great question, and I don't even know where to begin trying to answer it. You know, I think the first thing to say about the boat strikes is there actually was some pushback. Right. We now know that there were senior military officers who resigned in protest over what was happening. I think we probably see some of that in a domestic deployment as well. I mean, again, I think, Mark, the real question in any domestic deployment of the military is going to be to what extent Hegseth, and, you know, the Secretary of the army or whoever the combatant commanders are, override the traditional rules. Right. To what extent? They say we're actually not going to follow the traditional limits on, you know, uses of force in these circumstances. And I think if that happens, Mark, it will be a scandal and one that we will know about quickly because it will surely provoke some members of the military to publicly and loudly resign. It will provoke dissension in the ranks. I think, Mark, even folks who are comfortable participating in operations to use lethal force against suspected narco traffickers on the high seas are going to have a little bit of pause when it comes to using troops against our own people on our own cities and our own streets.

Mark Joseph Stern (32:39)

I'm sensing a little bit of tension in your answers, and I feel it, too. And that tension seems to be that you really don't think Trump should invoke the Insurrection Act. You don't think he has the authority to do so here. But at the same time, you maybe trust the military more than immigration agents.

Steve Vladek (32:56)

Yes.

Mark Joseph Stern (32:57)

Why is that?

Steve Vladek (33:02)

Why is that? A couple reasons. Right. They have much more training. There is much more robust internal discipline. However difficult it is to sue the military for damages, there is a robust internal process by which military service members who misbehave are subject to discipline. And that's not a political decision by Secretary Hegseth. Right. That is a unit decision by unit commanders, most of whom are insulated from direct political interference. So there's a tradition of at least internal accountability in the military, Mark, that is by no means perfect, but that puts ICE to shame. There's a culture of following the rules in the military that I don't think is remotely what we see in ice. Just to be in the military, you have to go through a heck of a lot more than you do to apparently become an ICE officer. And so I think what all of that lends itself to is just a. A sense that we haven't necessarily tested recently, Mark. That the military is going to be less likely to abuse its authorities in the law enforcement space than ICE has been. On the flip side, it has been 34 years since any American troops were in this position. And, you know, whether what had been true historically will remain true today, I think is an open question. But at least the historical precedents are that, you know, troops who were called out under the Insurrection act tended to behave pretty well.

Mark Joseph Stern (34:21)

And I guess on the optimistic side of the ledger there, we know that ICE has a flood of new recruits who are totally unqualified, largely untrained, unaccountable.

Steve Vladek (34:29)

Even writers for Slate. Right?

Mark Joseph Stern (34:31)

Yes, yes, indeed. And we're so proud to have an accepted ICE officer as a Slate byline now. But Pete Hegseth has not yet had time to pack the ranks of the military with thugs of the kind that we've seen in ICE and CBP under the banner of his new kind of war fighting ethos. Right, right.

Steve Vladek (34:51)

So far as we can tell. That's right. I mean, so this at the senior levels, maybe, but again, it's not going to be the lieutenant generals and the colonels who are the ones who are out on the streets. This tension here, I think, is worth just sort of saying one more thing about, which is, you know, I'm less worried that an invocation of the Insurrection act is going to make the situation on the ground worse. I am more worried that it's going to create a really ominous precedent going forward where we break the seal and where it just becomes a more common thing that presidents do. That gets us more desensitized to how extraordinary it is and has been historically to have, you know, uniformed members of the U.S. army and the U.S. marine Corps on our streets.

Mark Joseph Stern (35:32)

You've represented service members. You're probably representing them right now. What advice would you give to those men and women in uniform if they are sent out into the streets of the Twin Cities under the Insurrection Act.

Steve Vladek (35:45)

I think the best advice is, you know, unit cohesion really matters. Talk to your commanders. If you need access to counsel, there are hotlines that are available. There are resources for soldiers who have questions about whether particular orders might or may not be lawful. I will just say, Mark, I think there's going to be a big difference between whether soldiers can and should push back against a deployment order, where I think the answer is probably not like that's what the litigation will be for and whether we get to a point where there are specific orders coming down the chain of command to use force in circumstances in which the soldiers don't think it's justified. The latter, to me, I think, are the much harder cases than the fourth.

Mark Joseph Stern (36:25)

Service members who are listening. Steve Vladek is probably not your lawyer, but he is a lawyer and he has some very wise words for you. Steve Vladek is a professor of law at the Georgetown University Law center and is a nationally recognized expert on the federal courts, the Supreme Court, national security law and military justice. And you absolutely must read his fantastic Substack one first. Steve, thank you so much for joining us.

Steve Vladek (36:48)

Thanks, Mark.

Mark Joseph Stern (36:54)

We're going to take a short break. When we come back, a slew of resignations from the United States Attorney's office in Minnesota and what they tell us about how things are going at the Justice Department in the wake of the murder of Renee Good. Stick around.

Julia Gegenheimer (37:17)

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Mark Joseph Stern (37:56)

One week after an ICE officer shot and killed Renee Good in her car in south Minneapolis, the New York Times released more analysis of multiple videos of the killing, some from footage taken, taken from a previously unseen angle. I have watched it, and it is so very clear that Renee Goode neither rammed ICE officer Jonathan Ross nor ran over him. But the Civil Rights Division of Pam Bondi's Justice Department doesn't care. The division has refused to investigate Ross, the officer who shot Good in the head, and instead reportedly directed the local U.S. attorney's office to investigate her widow for potential criminal charges. Charges. In response, at least six career prosecutors have resigned from the office. A stunning and highly unusual rebuke to the administration, Julia Gegenheimer served as an assistant special counsel and as a special litigation counsel in the Civil Rights Division's Criminal Section. With the Civil Rights Division, Julia prosecuted complex federal civil rights violations, including constitutional violations committed under color of law and hate crimes, with a particular focus on cases involving extremism and domestic terrorism. She's now special litigation counsel at Georgetown Law's Institute for Constitutional Advocacy and Protection. Julia, welcome.

Julia Gegenheimer (39:11)

Thank you so much. Thanks for having me.

Mark Joseph Stern (39:13)

Just to set the table, could you explain the kind of work that you did at the Civil Rights Division when it was under very different leadership?

Julia Gegenheimer (39:21)

Sure. And I will say here, you know, I was by no means the longest serving attorney in that office, but even during my tenure, I served under multiple administrations, Democrat and Republican, and that was generally par for the course for the attorneys that I worked with. And over those years, the mandate of the Criminal section of the Civil Rights Division, which is the specific office where I worked, was fairly targeted. The office focused on investigating and prosecuting instances of law enforcement misconduct that would range from excessive uses of force that were minor assaults all the way up to what we saw in Minneapolis, an officer involved shooting. The office also investigated federal hate crimes violations and human trafficking violations.

Mark Joseph Stern (40:16)

Just to be super clear, after a federal agent shoots and kills a civilian, normally the Civil Rights Division would at least open investigations, right?

Julia Gegenheimer (40:26)

Absolutely. Particularly where there is a federal officer involved. The office also investigates police involved shootings involving state and local officers. But especially here, where there's a federal officer, it's an incident that's garnered so much national attention and has impacted so many communities. I mean, this is a scenario that is just ripe for involvement of Criminal Section from the Civil Rights Division.

Mark Joseph Stern (40:55)

My understanding, and correct me if I'm wrong, is that the Civil Rights Division isn't going to get involved with every incident at the state or local level in which state or local cops shoot and kill someone. Usually they will reserve intervention for if there seems to be some major civil rights violation or some pattern or practice of violations. But when a federal agent shoots and kills someone, the Justice Department and specifically the Civil Rights Division needs to investigate, because otherwise it's very difficult for any other agency, especially at the state or local level, to do so. Like, you're pretty much the first point of contact when a federal agent kills someone in the field, right?

Julia Gegenheimer (41:32)

Yeah. I mean, I think I would agree. DOJ is best positioned in that specific scenario that you just described to be the ones to go in to lead an investigation to determine if there's been a violation of federal law. And because there are significant challenges in a state investigating and prosecuting a federal officer, you know, the path toward accountability is the most straightforward at the federal level. Typically, that involves a partnership between attorneys and investigators from main justice, from the Civil Rights Division division, and from the local U.S. attorney's office and the FBI in the area where the incident occurred.

Mark Joseph Stern (42:14)

The current head of the Civil Rights Division, Hermeet Dhillon, who was appointed by Donald Trump, is refusing to even open a probe into the ICE agent who shot Renee Good. What do you make of that?

Julia Gegenheimer (42:26)

To say that it is highly unusual. I mean, even as I say that is a huge understatement. You know, I think one of the things that the attorneys who investigate and prosecute these cases know very well is that it's almost impossible to judge a case from the outset. The attorneys there have seen cases that look impossible, break open and become prosecutable, and they've seen the reverse, cases that look promising, that after a fair and thorough investigation, they determine are not prosecutable or they decline to bring charges. So to say from the outset that we're not gonna do anything. I believe Todd Blanche, the deputy attorney general, made a statement that there was no basis for a federal investigation here. That really just flies in the face of years and years, even decades of best practices.

Mark Joseph Stern (43:24)

When the deputy AG says there's just no basis to open an investigation, that means he believes it's such an open and shut case that there was no civil rights violation or any other crime committed here. Justice Department need not even glance at the possibility of an investigation. That it's the simplest call in the world to say, nope, no problem, we're wiping our hands of this. That's what he means when he says there's no basis. Right.

Julia Gegenheimer (43:49)

That's how I interpret it. The other interpretation would be that there's no possibility of a federal crime having been committed here. Right. There's no legal possibility. But no matter how you look at it, that's not a call that you can make, make from the outset based on, you know, a few videos. Now, certainly I'm not privy to the material that anyone inside DOJ has been able to review or has reviewed so far. But statements like that, particularly coupled with statements from DHS officials and other administration officials hours after the incident occurred, basically coming out and saying, there's nothing to see here. There is no crime committed here. I mean, it's impossible to make that ultimate determination so quickly, particularly when, during the normal course of things, this is something that smart, experienced investigators and Prosecutors would investigate for months to be able to reach that determination.

Mark Joseph Stern (44:52)

And yet, instead of investigating the officer who shot Good on camera, the Justice Department is reportedly investigating Good's widow for some unknown alleged crime, which looks a lot like retaliation. We know that as of this taping, at least six prosecutors from the Minneapolis U.S. attorney's office have resigned rather than pursue this investigation. Can you explain just how unusual it is to see career prosecutors resign en masse like this?

Julia Gegenheimer (45:20)

These are people, you know, I mentioned earlier in, in the context of the Civil Rights Division, these are people who are dedicated to the mission. They're not political. In many cases, in Both the Minneapolis U.S. attorney's office and in the Civil Rights Division, these are people who have served over, over multiple administrations. And frankly, they love their job. They're used to working hard, they're used to doing hard things in the course of their job. So these are not people who are just going to resign at the drop of a hat. They're really dedicated public servants. And so to be pushed out like that really takes something notable and extraordinary.

Mark Joseph Stern (46:03)

You say pushed out. I mean, it looks like resignations in protest, right? Is there any other way, way to interpret this? I know that the administration has stayed somewhat tight lipped about it and there's actually been a lot of hand wringing among law enforcement in the area that these prosecutors were really important to investigating and prosecuting actual crimes committed on the ground. This looks like the prosecutors deciding that even carrying on that good work cannot be justified if they are required to open obviously partisan investigations into a grieving widow because her wife was shot by ICE and she needs to be vilified.

Julia Gegenheimer (46:41)

What I mean by pushed out is just the, you know, repeatedly or even once being asked to do something that is unlawful, unethical, unprofessional. Longtime prosecutors in particular are sort of imbued with these ethical obligations that we have to conduct ourselves by. And so, you know, when you are required to do something that you know is unethical or that you believe is wrong, that's what I mean by putting.

Mark Joseph Stern (47:10)

You spent years working on cases involving domestic terrorism and extremist violence. Deputy AG Todd Blanch, who we've been talking about this week, described Minnesota Governor Tim Walz and Mayor Jacob Fry as being engaged in terrorism. I want to play a clip from Governor Walz's address on Wednesday night. This is the kind of language he's using. We can, we must proceed protest loudly, urgently, but also peacefully.

Steve Vladek (47:39)

Indeed, as hard as we will fight.

Mark Joseph Stern (47:40)

In the courts and at the ballot box, we cannot and will not let violence prevail. You're angry. I'm angry. Angry is not a strong enough word. But we must remain peaceful. Meanwhile, here's the exact language from Blanche's post on X. Quote, walls and fry. I'm focused on stopping you from your terrorism by whatever means necessary. This is not a threat, it's a problem. Promise. We've been talking a lot about this on the show, but I'm curious for your thoughts. What happens when almost anyone can be classified as a terrorist and any opposition to the government, including protected First Amendment activities, can be classified as terrorism?

Julia Gegenheimer (48:22)

Yeah, I think it's important here, when we talk about domestic terrorism to sort of take a step back and look at what we actually mean when we use that term, because it's being thrown around a lot and it's kind of, in common parlance, come to be a stand in almost for people who are opposed to this administration or its policies, or who are protesting this administration or its policies, or frankly, who are seeking to hold this administration accountable. But federal law actually defines domestic terrorism. So under the law, domestic terrorism involves activities that are dangerous to human life that are in violation of federal criminal law, and that on top of that, have some sort of motivation or intent to intimidate a population to affect the conduct or the policy of a government by intimidation or coercion or violence. That is the definition under federal law. And even then, domestic terrorism is not itself a federal crime. Right. You have to have an underlying federal criminal violation and then these additional layers of motivation or intent on top of it. So I think the impact of sort of throwing this term around very loosely is that it allows the people deeming others domestic terrorists or involved in domestic terrorism to essentially criminalize them when in fact their conduct falls far, far short of what federal law would actually look at as domestic terrorism.

Mark Joseph Stern (50:11)

We've seen the president and his allies calling these protesters terrorists. Now, for quite some time, we've seen the government treating protesters like Renee Goode, much as they treated the fishermen in boats in international waters who they bombed without any semblance of due process. It feels to me like an escalation to then accuse elected, local and state of terrorism.

Julia Gegenheimer (50:35)

It is profoundly disturbing. And I think the reason why this feels different to you is that it is a bit of a different flavor. I mean, it's pitting the federal government against the states and creating this tension where it doesn't need to be one. And frankly, encouraging acts of political violence, implicitly encouraging acts of political violence against these elected officials by turning them into. To the enemy.

Mark Joseph Stern (51:07)

So we have the Trump administration falsely accusing state and local leaders of encouraging political violence and in the process, actually encouraging political violence against the people they're defaming.

Julia Gegenheimer (51:19)

Sure. And I don't want to sit here and say that I have a quote from a federal official that explicitly encourages political violence. But as we've seen throughout history, even recent history, when you put people in opposition like that, when you portray them as the enemy, when you describe them as kind of threatening a person's way of life or things that they hold dear, when you other them like that, that creates the conditions under which people are more likely to resort to political violence, where they're so desperate that political violence becomes more and more the norm.

Mark Joseph Stern (51:57)

And it feels very much of a piece with the Trump administration treating blue states as the enemy of. Of this federal government, somehow of the American people, you know, shutting off federal funds to blue states, canceling projects within blue states, trying to suppress the votes of blue state residents. It's direct hostility and antagonism toward the half of the country that didn't vote for him and refusing to acknowledge the legitimacy of who those people did vote for, which is people like Tim Walls. This is not something that anyone can answer without a functioning crystal ball, but it seems to me it leads to a really dark place when the federal government can almost declare war on a state because it didn't go for him in the most recent election and occupy that state with federal agents who are actively hostile toward, and, in fact, violent toward the local community.

Julia Gegenheimer (52:47)

Well, that is what we're seeing, and I think officials in this administration have been explicit about that, that they are targeting blue states. We've seen the surges in. In now Minnesota, in Chicago, in Washington, D.C. and the reasoning behind that has been that these are traditionally blue states or democratic areas. So I don't think it takes too much reading between the lines to see that that is what's going on.

Mark Joseph Stern (53:16)

In his address to Minnesotans on Wednesday night, Governor Walz urged people there to bear witness and help to create a record. That record, of course, is vital in prosecutions, should they ever happen. But at the same, the Trump administration is telling citizens that following or recording ICE officers is a federal crime, that it's an obstruction of law enforcement to follow them and to document what they are doing. Is that true?

Julia Gegenheimer (53:42)

That is something that has been long and well recognized as protected by the First Amendment. You know, there is a line between somebody recording law enforcement from a safe distance, say officers are attempting to make an arrest without impeding their ability to make an arrest. So I don't want to say that just because someone has a phone in their hand or a camera in their hand means that anything they do is protected. But the act of observing officers, of recording officers, that is First Amendment protected activity.

Mark Joseph Stern (54:21)

Can you just talk about why? I think this gets lost in the conversation, and there's a wrinkle here of using 21st century technology that the framers couldn't possibly have conceived of. But it does seem like this is kind of bedrock First Amendment stuff, right? That the First Amendment isn't just, I don't know, buying elections if you are a corporation or a billionaire, that in fact regular people have a right, if not a duty in a democracy to document what public officials very much including agents of the state, are doing when they are on the job. Is that overly optimistic to believe that that feels like a core First Amendment principle, or is this something that the law pretty much bears out?

Julia Gegenheimer (55:01)

I mean, I think that's something that the law bears out, and it's connected to the idea that people have a right to know what their government is doing, to express their views on what government is doing, to protest peacefully against what their government is doing. I mean, those are all. Certainly this idea of cell phone recordings of ICE activity is very much a now issue, but it all connects back to these really fundamental principles that the First Amendment was designed to protect.

Mark Joseph Stern (55:35)

ICE is claiming that these recordings are obstruction, and the Justice Department is claiming it's illegal obstruction. At the same time, we're seeing ICE try to do their own surveillance of protesters in a much more invasive and I think, legally dubious way. There's been a ton of reporting about immigration agents using digital surveillance to identify and harass protesters. It seems like these agents have access to secure databases with extraordinarily sensitive personal information that's meant to be used for legitimate law enforcement purposes. Minnesota says that it's not sharing this information with federal agents. We don't know exactly how they're getting it. How far outside the norm is this? Is this a real departure from how those databases have traditionally been used and how federal law enforcement has used personal information for surveilling demonstration?

Julia Gegenheimer (56:27)

You know, in terms of my past practice, I'm not familiar with the specific databases that are being used now in terms of the government's access and law enforcement's access to citizens personal information. I think that ties into this greater phenomenon that we're seeing, which is the loss of a presumption that our government is acting in good faith. It's true that law enforcement has access to a lot of personal records of various people. In my past practice, it was never a question that any of that would be accessed or used for improper purposes. And I think we're seeing that presumption fall away a little bit, you know, in terms of surveillance of protesters and people who are opposed to the administration. You know, this was a lesson that DOJ and the government was meant to have learned from the Hoover era, Right, when the FBI engaged in, frankly, unconstitutional covert surveillance of black leaders and civil rights organizations. But what we see is, you know, now we're coming back around to the government identifying groups of people that it believes are opposed to its goals and resorting to any means that it sees fit to surveil those people, investigate those people, charge the those people.

Mark Joseph Stern (57:52)

So we're also seeing a flood of videos showing federal agents using wildly disproportionate force against both suspected migrants and protesters engaged in First Amendment activities. What is your reaction to that? And also, would that normally lead to scrutiny from the Civil Rights Division?

Julia Gegenheimer (58:08)

To answer the second part of your question, yes, if there are individual instances that merit investigation, that's something that the Criminal Section would look into. The Civil Rights Division also looks into what are called pattern and practice investigations, looking at sort of overall trends or practices and policies of departments. So, absolutely, that would be something that, at the very least, would be investigated. I think the broader phenomenon is in some ways not surprising because you're sending in an enormous number of agents. I'm not sure at this point what kind of training those agents are receiving. You know, I've seen reporting that the training requirements are being cut. I know that there is an incredible push to recruit new officers to ICE and get them on the streets as quickly as possible. And you're sending them out into these incredibly volatile situations where the communities are fed up with the presence of immigration officers. And then on top of that, you have even public statements by DHS officials and administration officials declaring that these agencies are immune from prosecution and essentially talking them up as if they were military forces. So in some ways, you know, the fact that we're seeing so many uses of force against citizens in the places where DHS is operating is. Is not a surprise.

Mark Joseph Stern (59:42)

On Thursday morning, Donald Trump threatened to invoke the Insurrection act to, quote, put an end to the professional agitators and insurrectionists who are allegedly, quote, attacking the patri of ice. As of this taping, he has not yet invoked the act. He seems to be on the brink of doing so. It seems to me quite possible that this threat that the president has lobbed is really an effort to normalize military force against political opposition, even political opposition engaged in constitutionally protected activities under the guise of law enforcement. Does that, does that worry you? And could that precedent lead to even darker places?

Julia Gegenheimer (60:19)

Of course that worries me. The use of military forces against one's own population is contrary to what this country stands for, and it should worry anyone and everyone, no matter their political leaning. I think it's a very dangerous place for our country to be.

Mark Joseph Stern (60:43)

The Justice Department has lost a lot of people, including you, over the last year or so. We know it's been bleeding attorneys. It's very much short, short staffed. What is the starkest evidence that you've seen over the last year that all of these people leaving the Justice Department, all of this lost experience and wisdom accumulated over the years, is having an impact on how cases are being litigated and won or lost?

Julia Gegenheimer (61:11)

That's a great question. I think what we've seen, and I can speak mostly to the criminal prosecution side of things, is we've seen abnormal outcomes in cases at almost every level. And actually, what almost disturbs me more, I mean, you can talk about cases that a grand jury has declined to indict, cases that Pettit juries have acquitted. On that maybe you can read into that a degree of jury nullification. But almost more disturbing to me are the cases in, in which the normal process isn't being allowed to play out and civil servants, prosecutors who have been in the department who are just trying to do their job are being thwarted. So, you know, you look at cases where prosecutors are being directed to dismiss, cases where political officials in DOJ are directing prosecutors to ask for a certain sentence that is not consistent with the sentencing guidelines. There was a civil rights case in Tennessee that was set for trial, and the prosecutors were out there preparing for trial, and the case was dismissed over the line. Prosecutor's objections before trial. I mean, all of this should be raising red flags, not only to people who are familiar with how the Justice Department should work, but to people who care about the rule of law and who care about being safe and being secure in their care communities.

Mark Joseph Stern (62:51)

Ever since day one of Trump's second term, people have been trying to warn of how dangerous his lawlessness could actually be and how weak some of the guardrails that we assumed existed really were. As someone who investigated January 6th, you were, I'm sure, worried about all of this before day one of Trump 2.0, but it feels like the demolition of norms and institutions and guardrails is becoming very, very, very, very visible right now. Masked agents demanding citizens show their papers, violently assaulting them, kidnapping them, taking them to some unknown facility where they can't even contact their family. So I'm curious, when the Civil Rights Division was gutted, did you fear that we'd end up seeing something like this?

Julia Gegenheimer (63:38)

I fear what happens whenever there are are experienced ethical public servants who are being forced out of a job that they have done and would, under normal circumstances, continue to do faithfully. What you lose when people like that are no longer in the department or in government is not only do you lose their experience, but through. There's a culture of conducting yourself ethically with integrity, calling out what's normal and what's not normal. You know, pushing back where you need to push back. And you lose that when you lose people who have been around for a while, who have done difficult cases, investigated and prosecuted difficult cases under difficult circumstances, and who have just been inculcated with that cold. And so I think when that is gone, and, you know, my experiences with doj, but I'm sure it applies across the government, when that is gone, then you have a government that's become a little bit unmoored.

Mark Joseph Stern (64:55)

Would you say that you're surprised or even shocked that a culture that took so long to build up in the Justice Department could wind up being torn down so quickly?

Julia Gegenheimer (65:04)

I think it makes me really sad, and it makes me very worried for the future of DOJ and FBI. It's something that we all should be concerned about, because these are the people who do their jobs, do them very well, do them under incredibly difficult circumstances, and they do it to keep us safe, and they do it to preserve, you know, the constitutional norms of our country? It's surprising and disappointing just the degree to which the department is being dismantled. But above all, it's. It's just very, very sad.

Mark Joseph Stern (65:47)

I think you've laid out why and how the Justice Department has been corrupted by this administration. I mean, we've seen courts now, multiple federal judges calling out Justice Department lawyers for lying to them, making misrepresentations under oath. The Justice Department is very rapid losing the trust of the judiciary and the American people, I think. And I'm curious, you know, what happens when a kind of major organ of accountability, some might say the major organ in American society and government. What happens when all of that collapses almost overnight and we're left with a situation where the Justice Department is one in the same with Donald Trump and his closest allies and follows his rule to the the letter. And green lights brutality against protesters and pushes out prosecutors when they won't retaliate against perceived political foes. Is there a way back from this? I know that's a huge question. I'm not expecting you to give us a step by step framework, but like, is there a future in which the Justice Department is returned to a position where it can at least sometimes be trusted to actually enforce the law for everyone? And if so, like, how? How do we get there?

Julia Gegenheimer (67:01)

That is a question on the minds of many, many people these days. A lot of former doj, former federal government public servants. You know, I think what you described is right in that DOJ and DOJ attorneys are losing that presumption of regularity. They're losing that almost automatic credibility that they have when you step into court and you announce yourself on behalf of the United States. And, and that is a huge loss. It's something that took years, decades to build up in the eyes of the judiciary. And it's something that is crumbling day by day with each sort of finding of unethical behavior or what have you. So it's an enormous loss. And I think it's, you know, it highlights one of the reasons why it was so important to have this sense of separation between DOJ and the political branches and the White House, why the independence of the Department of Justice and of the FBI was something that everybody strove to respect because we didn't want to return to a situation where DOJ was just an attack dog for the White House. Now, in terms of how to build that back, you know, the one thing that I remain extremely hopeful about is that we've talked about these personnel losses from doj. But those people aren't disappearing into the ether. They're still around. They still have that experience. They're not applying that experience to government currently. But I know that if we get to a point one day where those people can return to government, we'll have the experience. We might not have the infrastructure. We might have to rebuild the infrastructure, but there is a great willingness to do that. And I'm hopeful that even though it will require an enormous amount of effort, that that is something that is achievable kind of rebuilding or building anew version of government and DOJ that abides by ethical norms and professional norms.

Mark Joseph Stern (69:17)

Julia Gegenheimer is Special Litigation Counsel at Georgetown Law's Institute for Constitutional Advocacy and Professor Protection, and previously served at the Justice Department's Civil Rights Division. Julia, thank you so much.

Julia Gegenheimer (69:29)

Thank you for having me.

Mark Joseph Stern (69:32)

That's all for this episode. Thanks so much for listening and thank you so much for your letters and questions. Keep them coming. We are reachable by email@amicuslate.com and you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube, or rate us and review us on Apple Podcasts. On today's Amicus Bonus episode, the landmark arguments at SCOTUS this week that are in danger of getting lost in the mix. I'm talking to Mary Rohmiller, a former Department of Education Office for Civil Rights lawyer, about trans athletes Little v. Heacox, West Virginia v. BPJ and how very misguided some of the justices were about the purpose and reality of Title 9 in school sports. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicus+ to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus Senior producer. Our producer is Patrick Fort. Hilary Fry is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel is is executive producer of Slate Podcasts and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.

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Julia Gegenheimer (71:25)

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Julia Gegenheimer (72:23)

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