Amicus With Dahlia Lithwick | "Invoking the Insurrection Act"

Date: January 17, 2026
Host: Mark Joseph Stern (in for Dahlia Lithwick)
Guests: Steve Vladek (Georgetown Law), Julia Gegenheimer (Georgetown Law, former DOJ Civil Rights Division)

Main Theme

This episode of Amicus confronts the rapidly escalating constitutional crisis in Minnesota, where President Trump is poised to invoke the Insurrection Act in response to mass protests and federal immigration crackdowns. The first segment, featuring national security law expert Steve Vladek, explores the historical, legal, and practical meaning of the Insurrection Act—what it allows, what it forbids, and the profound dangers of using military force against civilian protest. In the second half, former DOJ prosecutor Julia Gegenheimer reports on the Justice Department’s refusal to investigate the federal killing of protester Renee Goode, instead targeting Goode’s widow and prompting mass resignations among prosecutors. The episode paints a picture of “guardrails off” American law and the risks to constitutional democracy, civil liberties, and the very nature of federal government.

Key Discussion Points & Insights

1. The Insurrection Act—History and Legal Meaning

What Is the Insurrection Act?

• Actually a collection of four statutes dating back to 1792, wrongly thought of as a single law ([05:24] Steve Vladek).
• Designed as an emergency measure empowering the president to “call forth the militia”—and later the military—to suppress insurrections, repel invasions, or “execute the laws of the Union,” but only under highly limited circumstances.
• "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." ([05:24] Steve Vladek)

Historical Use—A Standard of Restraint

• Insurrection Act invoked roughly 30 times over U.S. history, last in 1992 during Rodney King riots ([06:41] Steve Vladek).
• Such deployments were "politically controversial, not legally controversial": ex., Kennedy sending troops to Mississippi to protect James Meredith ([07:13] Steve Vladek).
• DOJ has always read the Insurrection Act narrowly:
  • "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...taken over effective control of the area involved."—Nicholas Katzenbach, 1964 DOJ memo ([08:24] Steve Vladek)

Legal Limits—What Triggers Are (and Aren’t) Allowed

• The law is not about mere civilian unrest, nor even “interfering” with federal officers by protesters alone.
• "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." ([02:34], [09:00] Steve Vladek)
• Traditionally, the military steps in only when states refuse (or are overwhelmed and ask) federal help; if the state is functioning, the Act doesn’t apply.

Current Application: Minnesota Protests

• Trump’s reported rationale—protesters impeding ICE in Minnesota—does not meet any historical or statutory threshold:
  • "If one person doing one thing to impede an ICE officer from carrying out their duties was sufficient...all protests would trigger the Insurrection Act. That's not how we've ever understood [it]." ([11:42] Steve Vladek)
• No evidence Minnesota's state or local officials are obstructing federal law enforcement.

2. The Slippery Slope of Invocation and the Role of the Courts

Dangers in Shattering Precedent

• Use of the Act here "shifts a massive amount of discretion to the president to say, I see a protest I don't like, I'm sending in the military" ([12:55] Mark Joseph Stern).
• Danger is "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." ([13:28] Steve Vladek)
• Clarification: Invocation is not martial law—First, Fourth, Fifth, and Eighth Amendments still apply ([13:28] Steve Vladek).

Posse Comitatus Act Interplay

• Normally bars military from domestic law enforcement, but the Insurrection Act is a statutory exception ([14:44] Steve Vladek).

The Courts’ Role

• If invoked, legal challenges are inevitable.
• The Supreme Court’s likely approach: Not total deference, but “a whole lot of deference” to presidential findings ([21:50] Steve Vladek).
• "I don't think John Roberts is going to put his name...on an opinion that says we are powerless about anything. But...the President's entitled to a whole lot of deference..." ([21:50] Steve Vladek)
• Possible the Court avoids confronting factual misrepresentations directly ("The court's probably gonna have to say that Trump...is not telling the truth about what's happening and they're really hesitant to do so." [23:13] Mark Joseph Stern).

3. What Military Deployment Would Actually Mean

• Military troops would supplement ICE, carrying out ordinary law enforcement duties—arrest, probable cause, executing warrants ([26:16], [27:50] Steve Vladek).

• Civil liberties wouldn't "overnight" vanish, but presence of armed troops on American streets is "remarkably new precedent" ([26:16] Vladek).

• Troops may in fact exhibit "more robust internal discipline" than rushed, unvetted ICE officers ([33:02], [34:21] Vladek).

  "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..."
  — Steve Vladek ([34:51])

• Historically, military performs better than ICE in accountability and discipline, but this situation is unprecedented.

4. The Justice Department—Collapse of Accountability

Refusal to Investigate Renee Goode Killing

• Civil Rights Division refusing even to open an investigation after ICE officer killed protester Goode—“flies in the face of years and years, even decades of best practices” ([03:16], [42:26] Julia Gegenheimer).
• Instead, DOJ investigating Goode’s widow, clearly appearing as political retaliation ([45:20] Gegenheimer).
• Shock resignation of at least six prosecutors rather than proceed with the retaliation ([45:20] Gegenheimer):

  "To be pushed out like that really takes something notable and extraordinary...They're used to doing hard things...So to be pushed out like that really takes something notable and extraordinary." ([45:20], [46:03] Gegenheimer)

Chilling on Civil Rights & Protest

• DOJ and ICE treat recording of federal agents as obstruction, threatening constitutionally protected activity ([53:16], [53:42] Stern and Gegenheimer):

  "The act of observing officers, of recording officers, that is First Amendment protected activity." ([53:42] Gegenheimer)

Surveillance and Loss of Good Faith

• Federal agents using advanced surveillance on protesters—evokes era of Hoover and covert campaigns ([56:27] Gegenheimer).
• Erosion of the presumption that government agents act in good faith, as use of information and force is politicized ([56:27], [57:52] Gegenheimer).

Institutional Demolition and Its Impact

• Resignation/loss of experienced, ethical career staff at DOJ is having a profound impact ([61:11] Gegenheimer).
• DOJ is "losing that presumption of regularity"—loss of trust with the judiciary, enormous loss for the rule of law ([62:51], [67:01] Gegenheimer).
  • Recovery possible only through concerted effort and potential return of forced-out professionals.

Notable Quotes & Memorable Moments

On the Insurrection Act

• Steve Vladek:

  "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."
  ([02:34], [09:00])

• Steve Vladek:

  "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."
  ([11:42])

• Steve Vladek:

  "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."
  ([13:28])

• Steve Vladek:

  "There’s a culture of following the rules in the military that I don’t think is remotely what we see in ICE... But at least the historical precedents are that, you know, troops who were called out under the Insurrection Act tended to behave pretty well."
  ([33:02], [34:21])

On DOJ Collapse

• Julia Gegenheimer:

  "To say from the outset that we’re not going to do anything... That really just flies in the face of years and years, even decades of best practices."
  ([03:16], [42:26])

• Julia Gegenheimer:

  "I think what we’ve seen... is we’ve seen abnormal outcomes in cases at almost every level...what almost disturbs me more...are the cases in which the normal process isn’t being allowed to play out and civil servants, prosecutors...are being thwarted."
  ([61:11])

• Julia Gegenheimer:

  "The act of observing officers, of recording officers, that is First Amendment protected activity."
  ([53:42])

• Julia Gegenheimer:

  "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..."
  ([60:19])

Timestamps for Crucial Segments

• [01:07] — Setting the context: Minnesota, ICE deployment, looming Insurrection Act
• [05:05] — Steve Vladek on the Insurrection Act’s fragmented statute origins
• [06:41] — Historical presidential restraint in using the Act
• [09:00] — Legal bars against using Act simply for protest interference
• [13:28] — Military deployment is not martial law, but normalization is the danger
• [14:44] — Posse Comitatus and exceptions
• [21:50] — What does a legal challenge look like at the Supreme Court?
• [26:16] — If invoked: what troops can and cannot do; state authority implications
• [33:02] — Why the military may still be more restrained than ICE
• [42:26] — Julia Gegenheimer on DOJ collapse of investigations
• [45:20] — Prosecutor resignations over retaliatory investigation against Goode’s widow
• [53:42] — First Amendment and right to record police/ICE (free speech)
• [56:27] — Use of surveillance, breakdown of government good faith
• [67:01] — Can DOJ ever recover institutional legitimacy?

Flow and Tone

The tone is urgent, expert, sometimes incredulous—a mix of legal analysis, warning, and public education. Both guests and host speak forcefully but accessibly, anchoring their arguments in both law and recent developments, and drawing clear lines between historical precedent and current overreach.

Conclusion

This episode provides a sobering analysis of what happens when legal and institutional guardrails erode: how a vast, rarely used presidential power could be misapplied; the mechanisms of restraint and how they're breaking down; and the criminalization of dissent as justice institutions become politicized. As protests, federal force, and resignation waves collide in Minnesota, Amicus explores the legal and moral precipice on which American democracy now stands.