SCOTUS Greenlights Trump, Gaslights America

Summary

Amicus With Dahlia Lithwick: SCOTUS Greenlights Trump, Gaslights America

Date: December 6, 2025

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Overview

This episode of Amicus grapples with a tumultuous week in American law and politics, focusing on how the current Supreme Court is enabling anti-democratic and authoritarian trends, particularly in light of recent major decisions:

• The Court’s willingness to entertain (or facilitate) the rollback of birthright citizenship as enshrined in the 14th Amendment
• The approval of Texas Republicans’ racially gerrymandered congressional maps
• The looming threat to what remains of campaign finance law
• The erosion of the military’s legal and ethical guardrails under Trump’s administration, with special guest Malcolm Nance providing a grave warning about the implications of lawless military orders

Lithwick is joined by Slate’s Mark Joseph Stern and, later in the show, by veteran and intelligence expert Malcolm Nance.

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Key Discussion Points and Insights

1. A “Fact-Free” and Destabilizing Week in Law and Politics

[01:12–03:55]

• Lithwick opens with palpable frustration and concern: Trump’s overt racism, the Supreme Court greenlighting racial gerrymanders in Texas, ICE scooping up US citizens, conservatives gaslighting the public.
• The episode’s central question: “Which institutions will stand up to all of this, and which will capitulate?”
• The episode will cover not just the legal details but the broader impact on American institutions, democracy, and the rule of law.

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2. Supreme Court Takes Up Trump’s Assault on Birthright Citizenship

[03:55–08:24]

• Mark Joseph Stern: SCOTUS has granted cert in Trump v. Barbara, a case that gives the Court a clear opportunity to decide if Trump can end birthright citizenship for children of immigrants.
  • Trump’s executive order—intended to end birthright citizenship—violates the 14th Amendment, a century of precedent, and basic statutory law.
  • Lower courts have roundly rejected Trump’s policy, making this case a “clean shot” at the core constitutional question.
  • Stern remains “cautiously optimistic” the Court will uphold the 14th Amendment—if only as a performance of neutrality.

Memorable Quote:

“We are about to be told by the U.S. Supreme Court that there are sober, meritorious arguments on both sides”—Dahlia Lithwick [05:30]

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3. SCOTUS Endorses Texas’s Racial Gerrymander

[08:24–16:56]

• The Decision:

  • The Court revived a Texas congressional map designed to benefit Republicans, overruling a district judge (appointed by Trump) who had meticulously documented the map’s racially discriminatory intent and effect.
  • The unsigned majority opinion offered only two paragraphs of reasoning.

• Justice Alito’s Concurrence:

  • Blames Black and Hispanic voters for supposed partisanship, defending Texas Republicans’ motives as non-racial.
  • Mark Joseph Stern: This is “projection and gaslighting,” painting minorities as manipulative partisans while shielding white conservative politicians from scrutiny.

Memorable Quote:

"The mostly white politicians who actually drew this gerrymander get the presumption of good faith. ... But the racial minorities who challenged the gerrymander ... get treated like bad faith partisans." —Mark Joseph Stern [11:45]

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4. The Manipulation of Legal Principles to Entropy Democracy

[13:02–16:56]

• Lithwick and Stern deconstruct the ‘Purcell Principle’:
  • The Court invoked this principle (“don’t change election rules on the eve of an election”) despite the election being nearly a year away; Texas’s own legal gamesmanship is ignored.
  • The effect is to protect GOP gerrymanders by shielding illegal election laws from judicial remedy, making federal courts powerless to stop even blatantly racist election rules.

Memorable Quote:

“In practice, what it means right now in our neo Jim Crow era is that red states ... will get a free pass to gerrymander racial minorities into oblivion. Even if their maps are blatantly illegal and unquestionably racist, courts will be powerless to stop them.”—Mark Joseph Stern [15:57]

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5. The Supreme Court’s Shadow Docket and Justice Kagan’s Dissent

[19:03–22:35]

• Lithwick: Highlights how the Court’s use of so-called “elastic” principles undermines the work of lower courts, even when those judges are themselves Republican appointees.
• Stern: Praises Justice Kagan’s dissent for calling out the majority’s disregard for the facts and law, giving concrete examples of how the Supreme Court simply ignored the district’s court’s fact finding (“flat out impermissible under the law as it stood on Thursday”).

Notable Quote:

“I admire the outrage that sort of seeps off the page in her dissent.” —Mark Joseph Stern [20:51]

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6. Next Up: The Last Gasp of Campaign Finance Reform

[22:35–29:20]

• Mark Joseph Stern: Explains the coming case (National Republican Senatorial Committee v. Fe) and how it seeks to remove the last limits on parties spending unlimited sums in coordination with candidates.
  • The result would be to legalize essentially all forms of “soft money” influence.
  • Even after Citizens United, there are real differences between supposedly “independent” super-PACs and the direct influence of parties; this case would erase that barrier.
  • The precedent came after the Watergate-era Dairygate scandal; Stern expects the Court to overturn it in line with its hostility to campaign finance restrictions.

Notable Quote:

“The voices of ordinary people who want to participate in what remains of America's democracy are just going to get drowned out even more by the mega donors ...” —Mark Joseph Stern [28:55]

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7. The Shadow of the Unitary Executive: Trump v. Slaughter

[29:20–31:05]

• The Court will soon hear Trump v. Slaughter, which could allow any president to fire virtually all independent federal officials and exert king-like control over the executive branch.
  • Decision could enable Trump to purge disfavored officials and wield agencies as tools of personal power.

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8. The Military’s Lawless Turn: Boat Strikes and Unchecked Command

[33:36–66:17]

Featuring Malcolm Nance

• Malcolm Nance gives a historical and legal crash course on why US military personnel are required to disobey illegal orders—even from the president.
  • Traces the evolution of military law and ethics (from George Washington’s rules through My Lai and Nuremberg).
  • The Uniform Code of Military Justice and Geneva Conventions make clear: You do not shoot shipwrecked mariners; you do not slaughter civilians.
  • The adoption of “war on drugs 2.0” logic blurs the line between combatants and criminals, stretching the definition of “terrorist” out of all meaning.

Notable Quote:

“The first example is you do not shoot shipwrecked mariners. ... That is the primary example of a war crime listed in the Uniform Code of Military Justice.” —Malcolm Nance [41:38]

• On Pete Hegseth’s Role as Secretary of Defense:
  • Hegseth’s disregard for military law (“Jagoffs”) and contempt for legal checks create profound risk for troops and national honor.
  • Lowering legal standards does not make US forces safer; it emboldens adversaries and exposes US service members to greater danger and possible war crimes prosecution.
  • Trump and Hegseth’s collective “solution” is inspired by the movie Clear and Present Danger, not real law.

Memorable Exchange:

Lithwick: “So it’s the authorization of the use of Tom Clancy that is in fact the military...”
Nance: “There is no legal basis for anything he’s doing other than Tom Clancy did it. ... That’s where Trump got this idea. I’m not joking.” [52:15]

• Military Ethics and Chain of Command
  • Nance emphasizes the importance of senior NCOs and the institutional culture of resisting unlawful orders at all levels.
  • The current structure sidelines these checks in favor of “war fighters” making split-second, legally and morally dubious decisions.

Memorable Quote:

“A government that’s led by a clown isn’t a government. It’s a circus. And you are watching the circus.” —Malcolm Nance [62:17]

• International Implications
  • When the US commits war crimes, it endangers its troops worldwide by signaling to adversaries that similar conduct is permissible.

Notable Case:

Nance recounts a 2004 atrocity in Iraq—US soldiers’ war crime prompted enemy reprisal murders, showing direct, deadly consequences of abandoning military law. [65:03]

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Notable Quotes & Memorable Moments (with Timestamps)

• On how quickly radical arguments become mainstream law:

  “That which was unthinkably bonkers a year and a half ago is now going to the Supreme Court.” —Lithwick [05:30]

• On the meaning of SCOTUS’s gerrymander ruling:

  "It feels like this is just the court full on, mask off, pants down, throwing in for Trump, throwing in for Greg Abbott." —Lithwick [13:25]

• On the Purcell Principle’s expansion:

  “The Purcell principle, much like Christmas, comes earlier and earlier and earlier every year. And trotting it out in the first week of December, the year before an election is like really like pumpkin spice of all legal principles. Well done, well done, Justice Alito.” —Lithwick [19:20]

• On military law and illegal orders:

  “A US Service member is obligated to execute all orders given to them by superior officers in the chain of command. All lawful orders.” —Malcolm Nance [42:20]

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Important Segment Timestamps

• [01:12] — Lithwick frames the episode’s urgency and topics
• [03:55] — Trump v. Barbara and the threat to birthright citizenship
• [08:24] — Texas gerrymander ruling and Alito’s concurrence
• [13:02] — Expansion of the "Purcell Principle"
• [19:03] — Justice Kagan’s dissent called a “clinic” in dissent writing
• [22:35] — NRSC v. Fe: campaign finance law faces extinction
• [29:20] — Preview: SCOTUS and the unitary executive
• [33:36] — The Hegseth boat strike scandal, legal and historical context for illegal military orders (Malcolm Nance interview)
• [41:38] — “Do not shoot shipwrecked mariners:” UCMJ and Geneva Conventions
• [52:15] — “Authorization of the use of Tom Clancy as military policy”
• [62:17] — “A government ... led by a clown isn’t a government. It’s a circus.”
• [65:03] — Real consequences: How atrocities endanger American troops

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Conclusion

This episode of Amicus was a warning, a lament, and a call to attention. From the Supreme Court to the military, institutions are being bent toward antidemocratic ends—sometimes via legal sleight of hand, other times by simply casting aside ethics and law. Lithwick and Stern give listeners a trenchant, urgent survey of the legal landscape, while Malcolm Nance provides a dark but essential insight into the dangers of a military untethered from law.
If you care about the rule of law, voting rights, military ethics, or simply the trajectory of American democracy, this episode is essential listening.

Transcript

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I'm Dahlia Lithwick. This is Amicus Slate's podcast about the courts and the law and the Supreme Court.

I'm going to go ahead and confess right off the bat that weeks like this past one President Donald J. Trump performing naked racism on camera, SCOTUS deciding that the Texas legislatures racial gerrymander is just cool, cool cool. An Inspector General finding that Pete Hegseth signalgate messages endangered US Troops. More ICE roundups. It all feels very destabilizing. It all feels very fact free. Except we know the facts. Donald Trump is in fact a racist. Texas did in fact enact a racial gerrymander. Pete Hegseth gleefully endangers the troops and ICE is grabbing innocent people and even US citizens off of the streets. So the question is which institutions plan to stand up to all of that and which will capitulate and buckle later on in the show? We're going to turn to Pete Hegseth's memoir turned real war of lawless boat strikes and the split screen explanations about the men killed in a double tap strike because they were either a flipping a bombed out hull of a boat in order to get back into the narco terrorism fight, or they were shipwrecked men being murdered by the US Military. Now we don't purport to be experts on US Military law on this show, but we have been documenting since at least last February the ways in which this administration has blurred the lines between domestic policing, unchecked powers accumulated as part of the War on terror, emergency authority in the absence of any emergency, and the unlawful use of of military force a few Weeks back, we dedicated a whole show to troops and illegal orders. We've been documenting all of this precisely because these actions are a cornerstone of authoritarian takeover and because it's such a profound and dangerous abuse of the military and members of the armed services. Former career U.S. naval intelligence officer Malcolm Nance will be joining me to shed light on on what all this looks like from within the armed forces and what it means when there is no reliable arbiter of truth or law for the troops. But first, I want to welcome Slate senior writer and my amicus co host, Mark Joseph Stern. Because we've had a busy past few days at the Supreme Court and a busy couple of weeks to come, and some big news for the midterms and a significant development in Trump's quest to extra constitutionally restrict the birthright citizenship. So maybe we start there.

[Mark Joseph Stern]

Mark Yes, I think that's where we have to begin with the Supreme Court dropping yet another bomb on us on a Friday afternoon. The court has granted cert in a case called Trump v. Barbara. This is a clean vehicle for the justices to decide whether the Constitution does, in fact grant birthright citizenship to virtually all people born here. As listeners remember, I'm sure Trump issued an executive order on his first day back in office purporting to strip birthright citizenship moving forward from the children of immigrants who are here on temporary visas as well as undocumented immigrants. That, of course, violates the plain text of the 14th Amendment, a federal statute, and more than 120 years of Supreme Court precedent. But he did it anyway, and we thought we were going to get a big decision on this last term, but instead, the Supreme Court ended up taking away the nationwide injunction that had blocked the policy. This time around, it's a pretty clean shot at the fundamental question on the merits. Can Trump do this? The Justice Department is not trying to fight any kind of procedural or equitable issues here. This was a class action. The administration accepts that the lower courts ruled against the government. The administration is saying just give us a win and tell us that we can implement this policy. So this is the fight. This is the big one that we've been waiting for after the fake out last year, and I think by the end of June, the Supreme Court will tell us whether or not we still have a 14th amendment.

[Dahlia Lithwick]

To my eyes, Mark, this just serves as a really useful marker of where we stand in time. Because a year ago, going for the jugular on birthright citizenship was like snot out your nose punchline. Ludicrous argument that a year and change later. We are about to be told by the U.S. supreme Court that there are sober, meritorious arguments on both sides. And so, as a way of just noting how quickly things go from off the wall to on the wall, this is a good reminder that that which was unthinkably bonkers a year and a half ago is now going to the Supreme Court.

[Mark Joseph Stern]

Yeah, I couldn't put it better than that. I guess I will just sort of shame the law professors and Republican lawyers who have spent the last year racing to try to put together some kind of theory to explain why Trump should be able to ban birthright citizenship. They have utterly failed. Their arguments are frivolous and meritless, but it just shows you how law works now, right? There's this entire apparatus, this infrastructure on the right that is devoted to concocting bogus, originalist arguments to align the Supreme Court with the Republican Party platform. And it is nuts that we are here talking about the Supreme Court deciding an issue that was resolved after the Civil War, that was resolved again at the end of the 19th century by an otherwise pretty racist Supreme Court, which said, even we have to acknowledge that the children of immigrants get birthright citizenship. And here we are in 2025, and it still is al issue. So that fact makes this whole episode something of a win for Trump, because it is disgusting that we even have to have this conversation. I do want to sound a note of optimism, though. Every lower court ruled against the government in this case, and a bunch of different lawsuits had been filed. There were no wins for the Trump administration. The judges did admirable work laying out the historical records, saying, this is a stinker, this is a loser. I would still put money on the Supreme Court siding with those decisions. Not as confident as I was a year ago, but I still think that the force of the arguments against Trump's policy are, it's just so overwhelmingly strong that even the Supreme Court isn't going to want to try to fight it. And perhaps this is an opportunity for the justices to try to say, look, we're neutral. We aren't in the tank for Trump. We ruled against him here, and they can use it as cover while they rule for him in almost every other case. So maybe that's not as optimistic as I thought it would be. But I do still think that as horrible as it is, we're having this discussion at end of the day, birthright citizenship will be affirmed.

[Dahlia Lithwick]

On Thursday evening, there was another earthquake on the Supreme Court's shadow docket. This one Blessing, Texas's latest effort at racial gerrymanders and supercharging the redistricting arms race to come. It was a gobsmacking decision that was also not really a surprise. The Supreme Court revived a map produced by Texas Republicans to give five more House seats to Donald Trump and the gop, and in doing so, they lifted a district court's order that would have blocked the new map. This feels to me like a signal that the Robert Six are just all in on the gerrymandering arms race, especially if it's Republicans who are going to benefit. And to see why, you don't really need to read past Justice Alito's concurrence, which accuses the plaintiffs of using false quote claims of racial gerrymandering for partisan ends to favor Democrats. And unless I'm wrong, Mark, in his telling, it's the black and Hispanic voters who are the real partisans here and not the Texas Republicans. So just to clear this all up, is this projection and gaslighting for Alito again?

[Mark Joseph Stern]

Yes, shockingly. Although, Dalia, I'm actually kind of grateful that Justice Alito wrote this horrid concurrence because it really does lay out the totally upside down and frankly, somewhat racist reasoning that I think is driving this decision. The unsigned majority opinion has exactly two paragraphs of reasoning which do not stand up to scrutiny, as Justice Elena Kagan proved in dissent, and I will get to that in a minute. But I think that Alito's concurrence, which was joined by Clarence Thomas and Neil Gorsuch, cuts to the heart of what's going on here, and it is just so incredibly cynical and bleak. So let's recall what actually happened here. Right? Donald Trump pressured Texas to redraw its congressional maps so that Republicans would have a better chance of keeping the House of representatives in 2026. Both the Republican governor and the Texas legislature initially declined this call to redistrict. So Trump's Justice Department went to Plan B and sent a letter threatening to sue Texas on the entirely bogus grounds that the map it drew after the 2020 census, the map in place until qu, gives black and brown voters too much political power by putting them in several districts together. And Texas responded by begrudgingly, it seems, drawing a new map that dismantled those minority districts and redistributed their voters on the basis of race in a way that gave Republicans five additional seats. The district court's opinion, which to be clear, was written by a Trump appointed judge, Jeffrey Brown, found overwhelming evidence of this racial engineering, both direct and circumstantial so the district court held a nine day trial with 23 witnesses and 3,000 pages of evidence, then produced a 160 page opinion exhaustively explaining why Texas had discriminated against voters on the basis of race in violation of the 14th and 15th amendments. Then in two paragraphs, the Supreme Court's conservative supermajority dismissed all of that work as a mistake and essentially held that the district court should have just blinded itself to the obvious racism at work here. And really you have to look to the Alito concurrence to see exactly why. Because Alito says that he thinks the plaintiffs are wielding false claims of racism to help Democrats and that they don't really care about the allegedly unconstitutional racial discrimination at play here. So Dalia, note the neat trick. The mostly white politicians who actually drew this gerrymander get the presumption of good faith. In Alito's telling and with the majority right, they are assumed to have simply been trying to create an advantage for Republicans. They didn't consider race. They weren't racist. How dare anyone suggest otherwise. But the racial minorities who challenged the gerrymander as a violation of their constitutional rights, they get treated like bad faith partisans who are presumptively lying. That is the only framework through which the Supreme Court's decision and the Alito concurrence make any lick of sense.

[Dahlia Lithwick]

Yeah. And it raises this question mark that I've been thinking about a lot, which is the more it seems as though Trump and Trumpism are in peril and Magas in peril. And if polling and midterm elections and races that we're seeing, including in Tennessee this week, signal anything, it's that this stuff is in trouble.

[Mark Joseph Stern]

Yeah.

[Dahlia Lithwick]

And therefore the midterms become the harbinger of what is to come. And it really feels, it's hard to see this any other way. As though there are, I don't understand another way to think about it. Six MAGA justices on the Roberts court who are just, as you say, without acknowledging the record, without thinking about the test, without doing much other than, you know, shrugging their shoulders and saying yeah, we think Texas is going to prevail. And like scolding the court below. It feels like this is just the court full on, mask off, pants down, throwing in for Trump, throwing in for Greg Abbott. I don't know another plausible way to read this.

[Mark Joseph Stern]

I think that's the only plausible way to read it. And another signal that your reading is correct, I think, and that the majority is clearly rewarding the GOP's hardball tactics is the way that the court invoked the Purcell principle here. So listeners will remember. The Purcell Principle says that federal courts generally shouldn't change the election rules, quote, on the eve of an election. And the majority quotes that as though we are actually on the eve of an election. But of course, it is December 2025. The midterms are still nearly a year away. And the only reason that the district court ruled when it did last month is because Texas waited until the last possible moment to enact this map. So it's not as if the plaintiffs dilly dallied in bringing their challenge. And in fact, as Justice Kagan pointed out, they actually asked for an injunction before the governor even approved the new map. So they moved as fast as they possibly could, as did the district court, which I think did pretty heroic, producing this complex opinion. And you will not often hear me describe a Trump judge as doing heroic work, but that is what happened here. And yet the Supreme Court majority still faulted Judge Brown for acting too late and, quote, causing much confusion and upsetting the delicate federal state balance in elections. So I think that is absurd on its face. And it marks this radical expansion of the Purcell Principle, which now apparently bars courts from protecting voting rights a year before an election. Not just a week or a month or six months, but a full year. And in theory, that means that a state could enact a literal Jim Crow law, like a literacy test or a grandfather clause or an all white primary, and courts couldn't block it because doing so could cause voter confusion and upset the federal state balance in elections. And in practice, what it means right now in our neo Jim Crow era is that red states like Indiana and Florida will get a free pass to gerrymander racial minorities in to oblivion. Even if their maps are blatantly illegal and unquestionably racist, courts will be powerless to stop them. And that gives a huge advantage to Republicans, because in many states like Florida, their one neat trick for gaining a partisan advantage is diluting representation for racial minorities to create more safe GOP districts. And so they can now go full steam ahead, changing the rules, rigging the maps, hampering democracy without worrying about any pesky litigation that will cause problems for them. And that is the sign of a party that is desperate to cling on to power that it is quickly losing because it is losing popular support.

[Dahlia Lithwick]

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And now let's head back to my conversation with Mark Joseph Stern. You've just mentioned the Purcell Principle, Mark, which is the incredible elastic, right. We remember it from the last few election cycles. The court trots it out at undetermined times in undetermined ways. To say like, oh, what are you doing messing with elections right before elections, the Purcell principle, much like Christmas, comes earlier and earlier and earlier every year. And trotting it out in the first week of December, the year before an election is like really like pumpkin spice of all legal principles. Well done, well done, Justice Alito. But there's other incredible elastic principles that we've seen that have become so familiar in this chamber of horrors that is particularly part of the shadow docket. And so here we've got, as you noted, The Supreme Court just full on ignoring extensive findings of fact. A really yeoman like performance from the court below deciding in advance that, oops, you know, we think Texas is going to win in the end without telling us why. All of this gets called out in pretty, I think, plain terms from Justice Elena Kagan writing in dissent. I mean, she has absolutely no compunctions about calling this what it is. And I think you and I agree, this is Justice Kagan putting on more or less a clinic about how everything that is wrong with the court and how it makes decisions right now is just manifest. If you have thoughts or want to elaborate on the ways in which Justice Kagan is now simply saying, I am calling this what it is, I'd love to hear it.

[Mark Joseph Stern]

Well, I admire the outrage that sort of seeps off the page in her dissent. I think she was outraged on a lot of fronts. One was that she just couldn't believe the way that the majority so breezily substituted its own judgment for the extensive fact finding of the district court. And I also think she just definitively proved in those 17 pages that the majority was wrong on the law. You know, it's just black letter law that when district courts find this kind of direct and highly plausible evidence of racial gerrymandering, which almost never happens, the Supreme Court is required to give substantial deference to those findings. It is required to do so. That is what precedent says. That is the law, and the majority just refuse to follow the law. And so Kagan has this one really good example. She has several, but I will highlight one. The Republican operative who drew this racist map claimed that he never looked at racial data, even though he had it, quote, available at the press of a key on his redistricting software. And so he testified for a very long time. The district court did not find his testimony credible. It was inconsistent with other witnesses testimony. It conflicted with a bunch of evidence that showed a perfectly calibrated racial gerrymander. Here. Judge Brown was in that courtroom. He saw the testimony. He saw the map maker get tripped up by his own alleged cover story, and he ruled accordingly. And then, based on a cursory review of the transcript, the Supreme Court overruled him. That is just flat out impermissible under the law as it stood on Thursday. But that was inconvenient for the majority, so it just changed the law.

[Dahlia Lithwick]

Mark, we could talk about this case more because it, as I said, I think it signals a sea change in how the court is going to think about the midterms. But read in Isolation. This decision is chilling, perhaps slightly predictable, augurs not well for the future, but it is certainly part of a clear eyed effort, I think, from the Robert Six to ensure that the midterms next year are going to be as hinky and ambiguous and contested as possible. And to that end, coming up next week at the court is what's left of campaign finance reform is now on the chopping block. On Tuesday, the high court is gonna hear arguments in National Republican Senatorial Committee vs. Fe at this point, we are probably numb post Citizens United to the Court's assaults on just basic campaign finance efforts. But this case is actually still really important. And I think we have to force ourselves as listeners to this show to pay attention to it and what it symbolizes. So tell us what it's about and we're just gonna roll with it next week, which is also a busy week on other matters at the court. But tell us about this case.

[Mark Joseph Stern]

So this is a challenge to a federal law that limits the amount of money political parties can spend in coordination with their own candidates. So remember, individuals can only give congressional candidates $3,500 per election. The Supreme Court has so far upheld that cap. But individuals can give political parties way more, all told, nearly a million dollars through something called a joint fundraising committee. And they can do so by exploiting these loopholes that were created by, guess who, the Supreme Court and a decision called McCutcheon from 2014. So you can only hand a Republican candidate a $3,500 check, and it's hard to bribe someone in politics these days with $3,500. But you can hand a candidate's joint fundraising committee a million dollar check, and the committee can then route that money to the Republican Party, which will obviously want to spend a lot of it on getting their candidate elected. So this is the kind of scheme that, that the courts have generally said is a problem, that circumventing these limits through these kind of backdoor loopholes is a problem. And this particular way of doing things really raises a serious risk of quid pro quo agreements between donors and candidates. And that is not hypothetical. This law was passed because in the early 1970s, the dairy industry funneled $2 million to Nixon's reelection campaign in exchange for higher price controls on milk. And it did so by going through the Republican Party to avoid the limits on contributions that it would have otherwise faced. During the Watergate investigation, Congress uncovered this plot and it enacted the law in question here to limit the amount that political parties can spend trying to get their candidates elected so the parties don't just become conduits for corruption. And by the way, the Supreme Court upheld that law in a 2001 decision, but it was five to four with all four conservatives dissenting. So Republicans have been gunning for a do over for years as their party has grown more reliant on mega donors. And Republican Party committees and politicians, including J.D. vance, now Vice president, decided to file a lawsuit asking the Supreme Court to just overturn its precedent and strike down this coordination restriction. They say that the law suppresses the free speech rights of donors and parties and candidates by just making it harder for them to purchase elections, which was what the First Amendment was all about. And unfortunately, I think it is very likely that the Republican appointed justices will agree.

[Dahlia Lithwick]

And as I flicked at earlier Mark in the world post, Citizens United, it's easy to be so cynical about whatever's left, whatever sort of like rickety, you know, strands of campaign finance reform still exist. It feels to all of us, I think not unreasonably, like the billionaires and the tech bros and the corporations are buying up elections pretty much as a matter of course. So why does this case even matter when super PACs are already spending billions and billions on behalf of moneyed interest? That train has left the station. Why does this still matter?

[Mark Joseph Stern]

So super PACs, at least in theory, are not allowed to coordinate with candidates they support. Now, the Federal Elections Commission has been very lax about enforcing that rule, and candidates have certainly tested the limits, especially on the Republican side. But there are still real barriers between super PACs and candidates, much more so than there are between parties and candidates. Super PACs are independent entities. Parties and their candidates are sort of one and the same. So the whole premise of Citizens United was that this kind of independent spending could not lead to quid pro quo corruption because there was a buffer between donors and the candidates. And I think what's pernicious about this case is that it is trying to tear down the remaining wall between parties and their candidates. And donors can, as I said, give a lot more money to the parties than they can to the candidates. So you have all of these laws premised on the idea of that you shouldn't be allowed to give too much directly to a candidate because there's too high a risk that you'll demand favors in exchange for the money. That is quid pro quo corruption. The one thing that even this Supreme Court agrees is bad. But if parties can spend unlimited sums coordinating with their candidates, and parties can raise vast sums directly from donors, then they just become intermediaries for donors to buy candidates. And the Nixon episode is a perfect example of this. And so I think even in our age of super PACs, this regulation at issue here is still serving the important purpose of preventing political parties from turning into just loot boxes for candidates. And I'm pretty sure the Supreme Court is going to ignore that and strike down this law because of its unrelenting hostility toward campaign finance reforms. And that will lead to an increase in donors cutting million dollar checks to candidates by going through parties, probably sometimes with the expectation that they'll get favors in return. What scares me is that by large, we're not even going to see that happening. Right. The disclosure rules are so weak already. We're just going to see the corrosive results of these behind the scenes bribes. And the voices of ordinary people who want to participate in what remains of America's democracy are just going to get drowned out even more by the mega donors who are cutting these checks.

[Dahlia Lithwick]

So, Mark, we have so much more to talk about, up to and including. That's not even the worst thing that's happening at SCOTUS next week. For the bonus curious among our listeners, we're going to talk about this more in our plus episode. But there are really other hugely consequential cases barreling down on us in the coming weeks at the court that are going to, I think, either cement Trump's vision of the world and Trump's vision of his own power, or show that the court, what, has some kind of spine. Can you just briefly tell us what we'll be exploring in the episode pass the velvet rope right after this one.

[Mark Joseph Stern]

Yes. So on top of this blockbuster case, the Supreme Court will hear Trump v. Slaughter, which will allow it to decide whether Trump and every other president, at least in theory, should be allowed to fire all or nearly all federal officials who lead independent agencies like the Federal Trade Commission. This would permit Trump to exercise near dictatorial control over the executive branch, abolishing one of the key checks and balances that impose some limit on his power and allow him to take the reins of these independent agencies, make them totally subservient to the White House, and use them for his own corrupt ends. So somehow a case that will make our corrupt campaign finance system even worse is not the biggest one that SCOTUS will hear next week. It will also be considering whether Trump will become pretty much an actual king and seize the authority to purge the executive branch of anybody who says or thinks anything that he doesn't like.

[Dahlia Lithwick]

If you are not a Slate plus member yet, but you want to hear this conversation? You can head over to slate.com amicusplus and I'm going to share more details on membership, how to join, and what you get at the end of this show. For right now. Thank you Mark Joseph Stern. It's always a pleasure to talk to you and we'll see you on the other side.

[Mark Joseph Stern]

Thanks so much Dalia. See you on the other side of the velvet rope.

[Dahlia Lithwick]

We are going to take a short break, but when we come back, former Naval Intelligence officer Malcolm Nance joins me to explain all the ways that Pete Hegseth is out of his depth and why that is very bad for the country's fighting men and women.

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Last Friday, the Washington Post ran a story about a September 2, 2025 attack on a boat in the Caribbean that was allegedly carrying drugs to the US an edited video clip of that strike was released at the time. It was the first of 24 boat strikes that have now taken 87 lives. The Post reported that before the strike, quote, Defense Secretary Pete Hexseth gave a spoken directive, according to two people with direct knowledge of the operation. The was to Kill everybody, end quote. We now know that two men clinging to the hull of that boat were blown apart in the water after the fact. And evidently, pursuant to that order, long before any of that happened, there were looming constitutional and legal questions about these unauthorized strikes in the Caribbean and the eastern Pacific Ocean, about whether the US Is at war with small sea vessels and about whether alleged drug smuggler properly designated terrorists, and further, whether the US Government can suspend habeas corpus by applying the Alien Enemies act wherever, whenever, Last week, several members of Congress with military or intelligence experience released a video urging armed service members not to feel compelled to follow illegal commands. Donald Trump immediately suggested that this video was, quote, quote, seditious behavior punishable by death. The FBI opened an investigation. The White House now claims that it is not possible for a sitting president to give an illegal order ever. The law of war is on a collision course with a monarchic presidency with sweeping implications for the Alien Enemies act, congressional power, international law and diplomacy, and for the upcoming midterms. Malcolm Nance is a former career U. S. Naval Intelligence officer who served in the U. S. Navy from 1981 to 2001. He specializes in counterterrorism, intelligence and violent extremism as advisor for the US Government's law enforcement, homeland security, and intelligence agencies. He's author of numerous books, including they Want to Kill Americans, the Armed Militias, Fanatical Terrorists and Deranged Ideology of the Coming Trump Insurgency and the Plot to Destroy How Putin and His Spies Are Undermining America and Dismantling the West. Malcolm's podcast, Black Man Spy with Malcolm Nance is a must. Listen, welcome finally to Amicus. It is so good to have you on. I'm a little bit sad we're gonna talk about something so dire, but I just wanna say, like, I've been waiting for something dire to have you on, so it feels a little bit perfect.

[Malcolm Nance]

Waiting for something dire. I was waiting for you to bring donuts and, you know, No, I was waiting for something dire. And the funny thing is is that Amicus is, is a good way of putting this because I want to be on your side on this subject. So I'm glad to be here.

[Dahlia Lithwick]

I wonder if we can just start by you telling me, like, as if I'm seven, Malcolm, what are the obligations of any member of the United States military with respect to illegal directives? There is an affirmative duty. I just said that right to refuse illegal orders. Would you just walk me through where that is codified, what that obligation is?

[Malcolm Nance]

Sure. And you know, this requires people to Understand that there's a history here, right? There were times in American history where people were outraged at the behaviors that were going on within wars. One of the earliest ones was George Washington, when he was fighting the British and had to displace out of Manhattan and moved over to what is now Fort Lee, New Jersey. He watched American captive soldiers get bayoneted in what was now called Washington Heights by the British, who did it openly and publicly so that he could see them killing the prisoners. And he was outraged by this. Outraged enough that he issued the first orders on the treatment of captives within the laws of war. And our entire Uniform code of Military justice is really based on George Washington's outrage of how the soldiers of the American Revolution were treated by the British. He insisted that they have good care and feeding of them. In fact, after his amazing victory, coming all the way from Valley Forge and crossing down near New Hope into what's now known as Washington's Crossing and taking Trenton, he really treated the Hessian soldiers, the German mercenary contract soldiers for the British army so well that as much as 80% of them settled in the United States at the end of the war. They were not abused, they were not bayoneted. And so this set the pace for the Uniform Code of Military justice, also encompassing the behaviors and the ethics of modern war. The Civil War had its atrocities. You know, the Confederates at Andersonville Prison just inhumanely treating POWs. Nathan Bedford Forrest, the Confederate general general who massacred 100 surrendered Union soldiers who just happened to be black. He spared every white, he executed every black to the point where his own men were offended by his treatment of the blacks. Of course, he would go on to create the Ku Klux Klan, the Nazis behavior, the Japanese behavior in World War II. And a good example of that is the captain of a German U boat, U852, run by a captain, Lieutenant Echt, who in a secret mission going around Cape Town, South Africa, ran upon a merchant ship, sank it, and knowing that the debris and the survivors would tip the British, there was a U boat in the area off, he and his senior officers got on deck with machine guns and executed 33 of them in the water. Shot each and every one of them in the water and threw hand grenades at them. And he claimed it was to sink floating debris. No, 32 out of 35 were people in life preservers and lifeboats and the floating debris were the living people. Oh, by the way, those Nazis were all executed for doing that in the war crimes trials at the end of World War II. This particular case is used as an example in in Uniform Code of Military Justice Section 8.3.2.1, in which the mariners who have been shipwrecked. Right. Must be rescued. That is the primary example of a war crime listed in the Uniform Code of Military Justice. The first example is you do not shoot shipwrecked mariners. And shipwrecked, as I defined on my podcast this week, is any vessel in which the buoyancy has been removed through to combat damage or distress, other than a submarine, unless the submarine itself is sunk, who finds themselves at the mercy of the sea will now be in a shipwreck state. And then the United Nations Treaty of Law of the Sea kicks in and in which all mariners are obligated to come to the rescue of those who are in distress anywhere. All of this being said, it led up to the My Lai massacre in 1968 by Lieutenant William Calley, who was given orders to kill everyone who they believe were North Vietnamese or South Vietnamese Viet Cong in this one sector. And even though when informed that it was women and children and elderly, they could find no military age males, they were told to kill them all. And William Cowley ordered his company to execute what the numbers are arguable, 300 to 500 civilians. But these guys came with cameras and there was a military photographer with them, and there's a famous photo of a group of women and children huddled together alive. And the next photo of them in a road dead. And I mean, you. You can identify each individual person and his orders were waste them. Kill them all. That created the trial that changed and codified what a US Service member was obligated to do and not do. A US Service member is obligated to execute all orders given to them by superior officers in the chain of command. All lawful orders. Good example. Go clean the main deck on a ship. I've done that. Go chip paint on the missile deck with a heavy chipper and a scrub brush and you've got a day to do it. I've done that. Use toxic chemicals to remove paint. I've done that. Lawful orders. Go to the forward missile magazine, set a fire, and let's see if the magazine's fire suppression system will come on or if the ship will blow up. That's an unlawful order. It will endanger you, the vessel, or any person around you and or civilians. Geneva Convention of 1949. Civilians are at all times considered non combatants only in exceptional circumstances. This grounding is necessary because we get trained all of this, this at boot camp. Then we are reminded of all of this throughout our career in alarming regularity, anytime you're about to deploy overseas, the Judge Advocate General comes in or his representative comes in, he stops doing his divorce court on Friday and he comes in and he lectures you on, you know, Uniform Code of Military Justice, Geneva Convention, laws of war, law of the sea, anything that's applicable. And it really comes down to one sentence. Do not commit the crimes that our previous adversaries have committed, such as shooting civilians, executing prisoners, carrying out acts which we considered unlawful at the time, or executing unlawful orders in which, by the way, the military says this, a rational person would consider a crime or an existential danger to the safe handling of a unit or a ship. So it's hammered into our heads from day one.

[Dahlia Lithwick]

That Pelais example that, you know, was at the very beginning, end of what becomes the Nuremberg Trial. It is so on point here. I mean, it really is the paradigmatic case, as you said, about what happens when you have people literally holding onto the hull of a broken down ship and you're executing them. So this is not a gray area. You know, there are certainly claims that, oh, you know, they were, I don't know, signal with their ample free hands that more, you know, narco terrorists were gonna come and get the.

[Malcolm Nance]

Can we stipulate a few things before we go any further?

[Dahlia Lithwick]

Let's stipulate. It's very important.

[Malcolm Nance]

I mean, I've worked in counterterrorism for almost 40 years. I've written textbooks that are used at the Federal Law Enforcement Training center, the Terrorist Recognition Handbook, three editions. And, you know, I've had to deal with a lot of nasty people in this world, world. But what's happening now is Donald Trump has created a new paradigm in defining who is and who is not a combatant. And since we are now in the war on drugs 2.0 to say that the citizens of the United States are being killed through weapons that are being launched from Colombia, Venezuela, Ecuador, and that the prepackaged drugs, which, by the way, cocaine, does not have the death rate of fentanyl, 1% of fentanyl comes from Central and South America. 1%, 99% is transshipped from China with precursors to Mexico, then it comes in there. If we are going to say an individual who is engaged in an illicit drug trademark at any stage is now equal to a enemy combatant in a war, and that their materials, which do not actually kill you right away, is considered a weapon system, and that drug manufacturing sites are now considered the industrial base of a foreign military power, then the problem is, is that none of this reaches the definition of terrorism. Terrorism. Terrorism is an act or a threat of political violence in which the audience is larger than the immediate victims. They are not sending a message to the United States that they want to kill us with drugs. And this guy who may die on the street is designed to put fear into the hearts of 340 million Americans. No, that was the president of Honduras that Trump just pardoned. The man himself said, said, I will stick cocaine up the nose of every American and helped drug traffickers bring in 400 tons to the United States. But he managed to pay off President Trump. So these people, by no definition, no legal definition, are terrorists. They are not. They're civilians who are carrying out illicit trade. They are not pirates because they are not commandeering and seizing with the intent to enrich on the high seas. That's piracy. Which, by the way, it's still on the books. And trust me, Jesus, they are going to test this. It's still on the books in the US Navy that the captain of a warship can hang a pirate. And I would not be surprised if some captain gets a bug up his butt and feels that Pete Hegseth has got his back and he comes in, he has three or four people that they captured hung from the yard arm and claims that they're pirates. Never been stricken from the book. The point is you cannot just go around willy nilly and kill civilians.

[Dahlia Lithwick]

More in a moment with Malcolm Nance. This show is brought to you by BetterHelp. The holidays are a time of traditions. Now is the perfect moment to reflect on what that means to you or to rewrite them. Therapy during the holidays could be a new tradition, one in which you take time, time for yourself during what can be a joyful but sometimes hectic and lonely season. If you're thinking of starting therapy, consider trying BetterHelp to close the year with clarity rather than chaos. With over 30,000 therapists, BetterHelp is one of the world's largest online therapy platforms, having served over 5 million people globally. BetterHelp does the initial therapist matching work for you so you can focus on your therapy goals. This December, start a new tradition by taking care of you. Amicus Listeners get 10% [e-mail] Amicus that's betterhelp.com Amicus.

This episode is brought to you by Planned Parenthood Federation of America. The courts matter.

[Mark Joseph Stern]

The law matters.

[Dahlia Lithwick]

And so do the people behind the cases, the patients, families and communities Planned Parenthood serves every day. This year attacks on reproductive freedom have been relentless. The Trump administration and Congress passed a law to defund Planned Parenthood, a move that puts the health of 1.1 million patients across the country at risk. Planned Parenthood is in court to keep this law from taking away care from.

[Mark Joseph Stern]

Millions of of people.

[Dahlia Lithwick]

But they urgently need your help. You can rush your gift by visiting plannedparenthood.org defend no matter the size, your donation makes a real difference. Helping Planned Parenthood protect access to care when it matters most. Don't wait. Donate [e-mail] defend.

Correct me if I'm wrong, Malcolm, but it's also true that in some of the others other boat episodes, the United States has seized folks who are on the boats and repatriated them to their home countries. So the idea that every single person on this boat is a deathly criminal who needs to be eradicated, including with a second tap, is belied by the fact that we have already sent folks home to their home countries.

[Malcolm Nance]

Yeah. Why did we even dispatch a helicopter to recover them out of the water and return them to Ecuador and Colombia of which they were citizens? I mean, the only vessels that you could argue that could have been sunk as a clandestine platform for infiltrating drugs were the two narco mini subs which came from Colombia. You don't see us saying we're declaring war on Colombia today. But I'm going to tell you you what the legal precedents that Trump is using and the policy document that he has been advised on that all of these deaths, or I would arguably call murders, have been carried out under. And it's very simple. Most of you have probably seen it actually. It starred Harrison Ford and it was a Tom Clancy novel called A Clear and Present Danger in which a president whose FBI director is killed in Columbia declares a secret war on Columbia, Colombia and starts putting special operations on the ground to blow up drug labs and kill drug leaders extralegally. Just doing it. And we're also sinking boats and shooting down drug narco flying aircraft, including with American citizens on board. That's where Trump got this idea. I'm not joking. There is no legal basis for anything he's doing other than Tom Clancy did it. It was cool in the movie with Harrison Ford. Let's do some more.

[Dahlia Lithwick]

So it's the authorization of the use of Tom Clancy that is in fact the military. So there's gonna be some low level guy who thinks that Pete Hegseth has his back. And this is the single most low.

[Malcolm Nance]

Level or mid level deputy commander of The Special Operations command in charge of this.

[Dahlia Lithwick]

In this case, we have an admiral, but I think I just a SEAL.

[Malcolm Nance]

Admiral of which there are like two.

[Dahlia Lithwick]

And a well respected decorated. You know, this is not a hack. And the reason I want to talk to you about this piece of it, and this is so essential to understand how the armed forces works is I just want to play you a clip from Pete Hegseth's confirmation hearing as a reminder that he told us exactly who he was and I was want you to help me understand why it is that in the intervening weeks so many former and current military leaders were worried about this appointment.

[Malcolm Nance]

You've already disparaged in writing the Geneva Convention, the rules of law, all of these things.

[Dahlia Lithwick]

How will you be able to effectively.

[Malcolm Nance]

Lead a military in which one of those principles elements is discipline, respect for lawful authority. You have made statements to your platoon after being briefed by a JAG officer. Oh, by the way, would you explain what a JAG off is?

[Mark Joseph Stern]

I don't think I need to, sir.

[Malcolm Nance]

Why not?

[Dahlia Lithwick]

Because the men and women watching understand.

[Malcolm Nance]

Well, perhaps some of my colleagues don't understand. It would be a JAG officer who puts. Puts his or her own priorities in.

[Mark Joseph Stern]

Front of the warfighters, their promotions, their medals in front of having the backs.

[Dahlia Lithwick]

That those are making the tough calls.

[Mark Joseph Stern]

On the front lines.

[Malcolm Nance]

Thank you, Senator Reese. Interesting Jagoffs. We're gonna be more lethal. We're gonna remove restraints. How could I forget that?

[Dahlia Lithwick]

He has said. Malcolm, to be clear from the jump, that his fix for the US Military would be putting the interests of war fighters ahead of all the lawyers and the laws and the jags that handcuff these poor, poor individuals. Tape and all this like, legal niceties. And Trump and Hegseth have in fact hollowed out the infrastructure that would be tapped to answer questions, including jags, about what is legal and what is not legal. And I just feel like you have been crystal clear, certainly since I've heard you talk about this, that that does not protect American war fighters. At the end of the day, it does not make them safer. And I would love for you to just explain why. Taking away all legal restraints and then taking away the layer that is. Let me seek advice is profoundly dangerous.

[Malcolm Nance]

First off, I just want to point out to you that. Let's talk about Pete Hegseth's background. He was not even a regular army officer. He was a National Guardsman who asked to go on active duty with the regular army. He got seconded there as a young officer and. And his Entire life is what we call at the company level.

[Mark Joseph Stern]

Right.

[Malcolm Nance]

Where the most people he would have been in charge of or near being in charge of would have been about 300 people. But he was not in command of the units that he went to. He was an assignee. He was like an extra body. Right. And he went to Afghanistan and he got into his head that they were not allowed to do cool guy stuff, fun stuff. Right, Right. Based on what his ideology was. Now, don't forget, 2016, Pete Hegseth gave a speech talking about how they all had an obligation not to commit war crimes. So right now, 2025, Pete Hegseth should actually recall 2016 Pete Hegseth back on the active duty and charge him with court martial for stating the law correctly, like the six service members and senators and congressmen did. Let's set that aside for a minute. This man would have been the equivalent. If you are a Supreme Court clerk or someone who argues before the Supreme Court, his rank would have been the equivalent of a paralegal in a mall lawyer's office. Really? He does not have the experience. He got this thing into his head when he was in the army that the guys who really are doing all the work were officers at his rank and guys who were staff NCOs, staff sergeants at the rank of E6. And he constantly refers to this. We need to be thinking about our troops at the E6 level. Well, there's a reason that he says that, because the E7, E8, and E9 level in the Navy, which is what I was in, you actually change uniforms when you make E7, when you become a chief petty officer. Officer. Right. You are the living embodiment of common sense, technical skill, and, as I like to call it, recalibration of stupid. Okay, the E7 level is what? Are you allowed to use naughty language on this podcast? I don't know. Okay, the E7 level is the Are you fucking kidding me? Level. Right. Where an officer comes up and makes a stupid recommendation. The first words out of my mouth, I have an obligation to say, are you fucking kidding me? And then I will follow through with the professional, technical, legal, and moral obligation of whatever it is that he is asking me to do. Junior officers are trained by senior people like me. My E6 is below me. Me are tasked to do the assigned work that I need them to do. It's the E7. The army master sergeants, the Marine gunnery sergeants, the Air Force chief and chief master sergeants. Our job is to make sure you don't fuck up. Now, when I was just recently in Washington D.C. in August, I went with a group called remember your oath. And when the National Guard deployed there. And I was met a sergeant major, a black sergeant major of the Louisiana National Guard. This guy was in charge of all Louisiana guardsmen. And I was like, hey, there's Smajor. That's what we call him, Smajor. Hey there, Smajor. Glad to see you in Washington, but I hope your full time job here is making sure nobody does anything stupid. And he goes, no one is going to do anything stupid as long as I'm here. And I, I was like, enjoy your time in D.C. get more ice cream. That's the attitude of the supervisory level of the armed forces, the E7, 8 and 9s. I find it fascinating for Pete Hegseth the senior enlisted advisors, he does not want them in the thinking part of the chain of command when it comes to orders. He went to the next level, down below, below the top of the stupid level. And many massacres have happened at that level. Famous one, the Haditha massacre by the US Marines in 2004. A Marine Corps staff sergeant in E6, one of his guys got killed by an IED. He went into the village nearby and he slaughtered 25 civilians, the majority of whom were women and children. Only five men were killed killed in there. 20 were women and children, including a baby down to age 1 in uniform. By the way, when every one of those flag ranked officers were called in for his little speech at Quantico, right? 900 of them, well, 900 of them all had their senior enlisted advisor with them, which was an E8 or an E7. And they had an average of 20 years in service. As a matter of fact, that body that day we calculated had 32,000 combined years of military experience to Pete Hegseth's four years playing around on active duty in his like eight months in Afghanistan. Whatever it was, they know better. That's all I'm here to say. They know better. And anyone that follows an order. Now from here on out, in the Navy, I wear the rank of anchors. We have a saying when it's time to say, I'm going to take you down. You are ordering us to commit crimes. We say, I'm going to throw my anchors. I'm dropping my anchors on this one. I will not commit crimes for your stupid ass. That is what Admiral Bradley should have said.

[Dahlia Lithwick]

Malcolm, I want to ask you this. We're in the wake of Signalgate and now an IG report that just Came out about Signalgate. It's perfectly clear now what we all knew, which is how compromising that was to American forces.

[Malcolm Nance]

And the man's an idiot.

[Dahlia Lithwick]

And I want to just give you a chance to talk about the fact that Pete Hexseth, his initial impulse when all of this damning reporting comes out from the Washington Post last week, is posting a photo of a cartoon character, Franklin the turtle, firing on a boat from a helicopter. And I guess I'm just. I have a bit of a two part question, but they're both like Malcolm questions. One is, how does it possibly benefit Donald Trump, Congress, the military, to keep a clown like this in office when he is clearly endangering troops? And then just the coda to that question, you can answer it or not, Is he going to troll his way out of this, too?

[Malcolm Nance]

Well, first off, we're talking about the Donald Trump Regiment.

I won't give them the benefit of calling them an administration because we've seen no administration whatsoever. We've seen the dismantling of government, and we see a bunch of Internet trolls and fox news hosts, 30 of which are all leading this government, or what they call a government. Listen, a government that's led by a clown isn't a government. It's a circus. And you are watching the circus. And Trump enjoys the three ring spectacles. Practical here. And trust me, none of this is Cirque du Soleil, okay? This is just literally Keystone Cops. Will he get away with this trolling? Yes, he will. Donald Trump. I do a podcast every week with Lev Parnas and Michael Cohen, which I amusingly call two felons and a spy. And they know him personally for years. And they say, hey, he will never admit fault. The only way Pete Hegseth is going is if the level of embarrassment of Trump personally. All right, Hegseth would have to say something personal about Trump, like, that bastard threw me under the bus. And then he would let him go. But he will keep him there from now on. And his talk about lethality, removing the guardrails of lawyer. I mean, he fired six people in his first few days. First person was the head of the Coast Guard because she was a woman, even though she was famous, all right? Famous for rescuing mariners during the perfect storm. The second was the black chairman of the Joint Chiefs of Staff. The third was the female chief of Naval operations. The fourth, fifth and sixth was the chief jag of the Secretary of Defense, the Armed forces. Top three jags in the armed forces got rid of the lawyers. So what? So you think we won't see this. The Judge Advocate General of YouTube is watching. Okay? That means we're gonna see the stupid shit videos that you do that will kill people. And here's what we're gonna find out next, Dolly. That there were probably five, six or seven of these events. Courts are gonna rule that these attacks were already unlawful firing on civilians on the high seas and that we were just out there committing murder.

[Dahlia Lithwick]

Yeah, that's a pretty sobering place to end. And it's also, I think I just want to flag our friend Ashurangapa, who just skeeted the other day. And I think it's underlying some of what you're saying right now, Malcolm, which is when the US commits war crimes, it puts American troops in danger too, because it gives a green light to other countries to think that they can do the same. So it's not just as you're saying, that we are subjecting people to court martial.

[Malcolm Nance]

Can I give you one short example on that particular point? So in 2004, there was four soldiers left the town of Nasseriya, went to a town called Mahmudiya, where they raped and murdered a 14 year old girl, her mother, father and 6 year old sister. And after they group raped her, they set fire to her and killed her. Right? And covered it all up. Four soldiers. The next day, al Qaeda kidnapped two U.S. army soldiers on a bridge, decapitated them, eviscerated them and emasculated them. So six people died from that event that were innocent in this whole thing. We embolden our enemies by saying, look, they have no laws. We will go, we will fight with no laws. And Pete Heg said, desperately wants to fight with no laws. And so does Donald Trump, which is why he pardoned two people who were adjudicated by military courts of murder. And one of them was just straight up murder, the other one was shooting a prisoner. And pardon both of them. He loves them, he loves these characters. And now we're gonna have to deal with the shame of this all.

[Dahlia Lithwick]

Malcolm Nance is a former career U.S. naval intelligence officer who served in the U.S. navy from 1981 to 2001. And he specializes in counterterrorism, intelligence and violent extremism. His books are too many to name, but I do want to flag both the podcast he just talked about now and his podcast Black Man Spy with Malcolm Nance. Must listens all. Malcolm, thank you very, very much. I know that this has been like an incredibly. In a year of seeing you upset, I don't know that I've seen you as upset as I saw you talking about what this is doing to American fighting forces. And I'm so grateful for your work and your time today. Thank you so much for being with us.

[Malcolm Nance]

Oh, it's, it's my pleasure. I'm just a pissed off old chief without a cup of coffee, so I get even angrier.

[Dahlia Lithwick]

That is all for this regular episode of Amicus, but right now I'm going to head over to join Marc Joseph Stern in our bonus room, where we're going to be looking ahead to the coming week at the Supreme Court. Six of the nine justices are about to play yet another game of legal theory bingo, where it's all unitary executive all the time for their guy, and it's all major questions doctrine for your guy. If you want to join us, you can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or visit slate.comamicamicus+ to get access wherever you listen. Our bonus episode is available for you to listen to right now. We'll see you there. And remember, a Slate plus membership is more than just access to our Amicus plus bonus. By [e-mail] Amicus plus, you'll access all of Slate's articles, all of our podcasts, ad free all of our podcast extras, and you will be submitting supporting the work that we do. And I would humbly suggest that Slate plus membership makes a very fine holiday gift. Thank you so much for your letters and your questions. Keep them coming. We are reachable by [e-mail] you can find [e-mail] Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube, or you can rate us and review us on Apple Podcasts. Sara Burningham is Amgus Senior producer. Our producer is Patrick Fort. Hilary Frye is Slate's editor in chief, Susan Matthews is executive editor, Mia Lobel 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. Until then, hang on in there.

[Mark Joseph Stern]

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[Malcolm Nance]

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[Dahlia Lithwick]

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[Mark Joseph Stern]

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[Malcolm Nance]

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[Mark Joseph Stern]

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[Malcolm Nance]

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[Mark Joseph Stern]

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[Malcolm Nance]

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[Mark Joseph Stern]

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[Malcolm Nance]

B R I K dot com.