← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Trump’s Insurrection Claims Could Lead American Democracy Off a Cliff
00:56:19
Is the administration priming the American people to accept military intervention in the midterms?
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This episode is brought to you by Choiceology, an original podcast from Charles Schwab hosted by Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change. Choiceology is a show about the psychology and economics behind our decisions. Hear true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do. Listen to choiceology@schwab.com podcast or wherever you listen.
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Plus, career coaches are available to help you navigate your professional goals.
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Think with Capella University. Learn more@capella.edu this is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwig.
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B
You've called the district judge's ruling blocking the deployment of National Guard in Oregon legal insurrection. Does the administration still plan to abide by that ruling?
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C
Well, the administration filed an appeal this morning with the 9th Circuit. I would note the administration won an identical case in the 9th Circuit just a few months ago with respect to the federalizing of the California national guard under Title 10 of the US Code.
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B
The President has plenary authority has Stephen? Stephen? Hey, Stephen, can you hear me? If the courts uphold this idea that he also has the exclusive authority to decide when an insurrection occurs, then, you know, facts be damned. Anything that happens anywhere could be labeled an insurrection and could be the trigger for deploying troops.
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C
We don't need to puzzle through weird hypotheticals. It's happening right now in the Caribbean.
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A
This week brought upon us an alarming escalation between Donald Trump, the commander in chief of the armed forces, and the good people of Portland, Oregon and Chicago, Illinois. The courts thus far seem to be unpersuaded that fiery mayhem rules the streets of American cities that happen to have blue mares. Stephen Miller seems to be teasing, raising a claim that the President has, quote, plenary power to do with the military as he sees fit. And the army stuck in the middle is in the unenviable position of having to make impossible choices. How those in the military make those impossible choices was muddled mightily by the Supreme Court's ruling in Trump v. United States in July of 2024. On this week's show, we wanted to think about the competing pressures on the US Military and to try to understand what will happen in the event that the President forces a showdown between the armed forces and the American people. How can, how should officers of the executive branch respond to legally dubious orders from a commander in chief who has been placed above and in many ways beyond the law by the Roberts majority? To help us think this through, we are joined by Stephen J. Lepper and Eugene Fidel, whose piece in Just Security this past week raised questions about this precarious moment for American military officers, their role in the democracy and their oaths to the Constitution. General Stephen J. Lepper is a retired Air Force judge advocate currently engaged in the active practice of law and as a trustee or director on the boards of multiple nonprofit corporations. He served for 25 years in the US Air Force. Eugene R. Fidel teaches military justice at Yale Law School and is of counsel at the Washington, D.C. firm Feldesman LLP. He is a co author of Military Cases and Materials. And I want to welcome you both to this show. This feels very exigent generally, but this week it feels really urgent that we clarify some of the murkiness. So thank you for being with us.
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B
Pleasure to be here. Thank you.
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C
Great to be with you.
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A
Can we maybe start where your piece last week for Just Security opened? You wrote, quote, at no time since 1860 have military leaders confronted such a grave challenge to their oath to support and defend the Constitution. That feels like a really strong statement. And I know neither of you are given to hyperbole, so Steve, maybe you can start and just tell us what, what it means to say something that strongly worded and emphatic.
- [05:23]
B
Well, again, thank you for the opportunity to be here today. I'm a former judge advocate, as you mentioned, and I spent 35 years in uniform advising commanders partly on what the law says he or she can and can't do when it comes to conducting military operations. And when we talk about the challenge that exists today for the military, especially as it regards the conduct of military operations within the guardrails that the law establishes, we're really talking about the fact that today not only are our military commanders being asked and may potentially be asked to do things that fall outside those guardrails, but those guardrails themselves are a lot less certain than they used to be because of the things that have happened over the last year in changing the entire legal terrain that applies to orders given to the military and the kinds of operations that the military can engage in.
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A
And I guess, Gene, I'll direct this to you, but you Frame your thinking by reminding us that members of the US military actually have two sort of direct imperatives. There's two kind of bosses here. And what you write in the piece is that there are two principles every member of the military learns when he or she takes the oath of office. First, that superior orders are presumed lawful and must be scrupulously obeyed. Second, if there's ever a conflict between orders and the law, the law prevails. And, you know, it seems to me that one of the things you're trying to say here is that as soon as you have kind of two taskmasters giving possibly conflicting orders, you're already in a land that makes it sort of extra, extra pressurized if you have to make decisions in the moment. Right?
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C
That's absolutely right. And part of the problem is that we have an administration that has claimed to have the last word on what's lawful and what isn't lawful. The president issued an executive order some time ago saying that only his views and the views of his Attorney General, Pam Bondi, bind members of the executive branch and gis, members of all the armed services are part of the executive branch. So what if you have an order? And we can get into some of the details, but what if you have an order that calls for particular action or inaction? It could also be that kind of thing, and it's either clearly unlawful, arguably unlawful, or fairly clearly lawful. And how do you sort those things out? But I wanted to add, if you don't mind, Dalia, a footnote to what Steve said in our piece in Just Security, we said there hasn't been a challenge like this since 1860. I think it's worth lingering on that. That's kind of obviously a reference to the onset of the Civil War. There's a difference, though, because in the Civil War, and the example that comes to mind, of course, is General Lee, graduate of West Point. He's got a statue, I believe at West Point, his loyalties were divided not between lawful and unlawful. It was between his loyalty to the federal union and his loyalty to his birth state, the Commonwealth of Virginia. What we have now is a tension between loyalty to the country and loyalty to an individual who happens to be the incumbent commander in chief. And the president, under the Constitution, is the commander in chief of all the armed forces. It's important to get a little granular about the differences between 1860 and now. That's not to say that we're not in a crisis on the same level as 1860, because I think the fundamental character of the Federal union is on the line right now. And the allocation of powers among the so called CO equal branches, they're not really CO equal, but there are three of them, the Executive, Congress, and the judiciary. How are those things going to be reconciled in an environment in which the holder of one of those offices, the only one held by a single individual, has a voracious appetite for authority?
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A
One of the reasons that your piece that I'm referencing, the one in Just Security, was so arresting is that you couple what you've both just said with the immunity decision in 2024. And I don't know that we've paid. I mean, we pay a lot of attention to it when we talk about, you know, executive powers and the unitary executive. But I think you map it onto this conflict in a way that frankly, kind of scared my face off, because I think your larger point is that that creates this meaningful tension between following lawful and unlawful orders within the military. And I think that I want to start by asking you, and maybe, Steve, this is a question for you. You open the piece by saying that with the exception of a little bit of language in the dissent, it's not clear that the majority in that case even thought about how this would impact the military.
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Well, you're absolutely right. And this is one of the changes in the legal landscape that I talked about that has created such confusion about whether a particular order may be lawful or not. Both the majority and the dissent in Trump versus United States focused on the implications of their position on the President and the democracy, respectively. Nobody, perhaps because they don't have a military background themselves, focused on the implications of that decision on the military itself. Justice Sotomayor used the military in a couple of examples that she cited that led to her conclusion that what this decision does is essentially makes the President a king. But she didn't talk about how military members, commanders in particular, were going to assess and follow orders given by the Commander in Chief after this decision and how this decision itself changed the nature of the lawfulness or unlawfulness of any particular order given by the Commander in Chief.
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A
Gene, that was a pretty stark, you know, colloquy. It came from the lower courts, too, that the president would order Seal Team 6 in to assassinate a rival. And I think it got construed in coverage of the case as, you know, a kind of really the fanciful hyperdrive, right. This would never happen. But also, as Steve just noted, nobody really thought of this from the perspective of Seal Team 6 being ordered to go in and assassinate a rival. And partly because Again, I think that the court wasn't thinking in those terms of how confounding it would be to get an order like that. It's not addressed at all in the opinion.
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C
Right. And you know, lawyers and judges love what's called the Parade of Horribles. You buttress a logical argument or an argument based on precedent with some outrageous example that catches the reader's attention and perhaps moves the needle one way or the other. And The SEAL Team 6 hypothetical is a good illustration of that. But you know what, Thalia? We don't need to puzzle through weird hypotheticals. It's happening right now in the Caribbean. Who could have imagined, let's say three years ago or six or nine years ago that the United States would be zapping vessels suspected of drug running vast distances from the nearest American soil, using weaponry that is associated with armed combat, not engaged in any combat, and there's no indication that anyone was firing back. And here we are. So the very questions that Steve and I raised in the Just Security article have come home to roost big time. You raised the question of accountability. There's a question first about whether there's what I call trickle down immunity. In other words, if the President of the United States, under the Supreme Court majority's take, has immunity for anything done practically in the course of his performance of duty as Commander in Chief or any other capacity that the President has, even on the civilian side of the House, that's great for him. It's not so great for people lower in the food chain, which is a lot of people in uniform. And that question is posed, I think quite directly by this spate of attacks on Venezuelan and perhaps a Colombian vessel. That's the latest news that I've seen that the President of Colombia says that the last of the vessels to be zapped by American forces turns out not to be Venezuelan, turns out to be Colombian. What does that mean? And why would he make something like that up? As the White House suggested, the question is now going to be what about the people who are in the strike cells, the people in the weapons system that's involved in these kinds of kinetic, technical phrase there, pardon me, activities? It's not simply the person who says fire, it's everybody in sight. Basically, because these days high tech weaponry is a team effort and the team may be spreading from Nellis Air Force Base to somewhere in the Caribbean and points in between. And the question is going to come up, maybe, maybe is this lawful? Maybe somebody's going to say, you know, Admiral, I'd like to See the legal memo on this, who said this was okay, firing at these civilians who aren't firing back. So I think the trickle down problem is a real one. And also the question of how the system of culpability, the system of achieving accountability more precisely, can dissolve, where you have the person at the top of the food chain who, by the way, has pardon power, and we'll get into that, can walk, and by the way, for whom the political system has effectively no checks and balances, because under the Constitution as we understand it, he's limited to two terms.
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A
I actually want to get back to the boats in the Caribbean, but before we do, I would like to touch on the pardon power because I think it's the other half of the equation here, which is, as you note in the piece, it's not just the immunity decision. It's that we know President Donald Trump has pardoned people in the past who've committed war crimes.
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B
Steve, you're absolutely right. And when Gene talks about trickle down immunity, let me just be really clear, what this refers to is the idea that the immunity that the Supreme Court recognized in the president is one that potentially can be extended to his agents. The rationale that the court gave for extending immunity to the president is really the same rationale that would support the extension of that immunity to the people who carry out his orders. And that that creates a huge, huge problem. Because what has always traditionally been a disincentive for military members to obey unlawful orders, which is I could be prosecuted if I do, has now potentially disappeared as a disincentive. If a military member or military commander, let's say one that zaps boats in the Caribbean, is confident that he or she isn't going to be held accountable for that order if it's followed because the Supreme Court has extended immunity to the president, which could extend to me as well, then that's a huge change in the way that a commander can think about the consequences of carrying out the order he or she's been given. The pardon power is essentially the same thing. And we know, as you mentioned, that the president has used the pardon power to essentially pardon three military members in his first administration who are considered war criminals. What the extension of immunity means is that like a pardon, if the president gives a pardon forever, that pardon applies to essentially immunize the person who committed a crime. The extension of immunity would do the same thing, but it wouldn't require this particular president to make a decision. It could apply to the next president who may want to hold that commander accountable for the crimes that were committed in pursuit of the objectives that the President established. So this immunity decision, and let me point out, there has been a lot of pushback on the very idea that the immunity that the Supreme Court conferred on the President could be expanded to include the people who execute his orders because of the potential consequences of that idea. And so I need to point out here that at the end of the piece, we push back on that notion that immunity extends beyond the President simply because extending it beyond the President has such enormously potentially hazardous consequences for our country.
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A
Go ahead, Gene.
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C
Yeah, it also has potentially appalling consequences in terms of the administration of justice. What it would mean is the person at the top whose finger is on the trigger metaphorically skates politically. And in terms of criminal exposure, the President is not subject to the Uniform Code of Military justice, the military's criminal code, whereas the people at the bottom end who have to obey orders, they're left naked and alone, basically, in terms of the administration of justice. And they have to fend for themselves in a system where everybody in sight is subject to removal, reassignment, retirement, and so forth by the President. So, you know, the danger of the unfair administration, unequal administration of justice is disturbing to say the least.
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A
It's interesting because it maps so elegantly onto where you started, which is if you want to construe that the law is what the President says it is, right, which is where this is going between the immunity decision and the pardon power, you've literally just made that happen. Right. The law is what the President says it is. More in a moment with Eugene Fidel and General Steven Lepper. This episode is brought to you by Choiceology, an original podcast from Charles Schwab. Choiceology is a show all about the psychology and economics behind our decisions. Each episode shares the latest research in behavioral science and dives into themes like can we learn to make smarter decisions? And the power of do overs. The show is hosted by Katie Milkman. She's an award winning behavioral scientist, professor at the Wharton School, and author of the best selling book how to Change. In each episode, Katie talks to authors, historians, athletes, Nobel laureates, and everyday people about why we make irrational choices and how we can make better ones to avoid costly mistakes. Listen and subscribe@schwab.com podcast or find it wherever you listen. If you're still overpaying for wireless, it's time to say yes to saying no at Mint Mobile. Their favorite word is no. No contracts, no monthly bills, no overages, no hidden fees, no B.S. even Slate's President Charlie Camerer is using Mint Mobile and he says it was really easy to switch providers. The SIM card was shipped to his home, they let him use his existing phone phone and he didn't even have to change his phone number. So ditch overpriced wireless and their jaw dropping monthly bills, unexpected overages and hidden fees. Ready to say yes to saying no. Make the switch@mintmobile.com amicus that's mintmobile.com amicus upfront payment of $45 required equivalent to $15 per month limited time new customer offer for the first first three months only. Speeds may slow above 35 GB on unlimited plan taxes and fees extra. See Mint Mobile for details. Cooler days call for layers that last and Quince is a go to for quality essentials that feel cozy, look refined and won't blow your budget. I cannot wait to start wearing the Mongolian cashmere sweater from Quints that I have in green and then bought again in black and burgundy because that's how I roll. And I just have to say in a moment of madness, I bought each of my sons the Mongolian cashmere quarter zip sweater, which they also adore beyond words. Because Quince partners directly with top tier ethical factories and cuts out the middlemen, they deliver luxury quality pieces at half the price of similar brands. Find your fall staples at quints. Go to quints.comamicus for free shipping on your order and 365 day returns. Now available in Canada too. That's Q-U-I-N-C-E.comamicus to get free shipping and 365 day returns. Quints.comamicus and we are back discussing America's mounting civil military crisis and Donald Trump's demolition of the legal guardrails design to prevent it. You both note, and this is obviously widely known, that regardless of who the commander in chief is and what he or she demands, you have an independent obligation in the military to seek to clarify the law, to seek guidance on the law, to speak up. I mean, this is not simply, you know, you do what you're told. And it leads me to the question, Steve, about what it is that a jag, a Judge Advocate General, does. Because I, I think I recall when a bunch of jags were fired. Everybody sort of shruggy, emojied and was like, well, that seems bad, but I don't know what they do. But I do think it braids really deeply into this question of the independent duty and obligation to know what the law is rather than just do what you're told.
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B
Well, at the outset of this conversation, I talked a little bit about what I did as a jag, I advised commanders on the legal limits of military operations and whether an order that he or she was given fits within those guardrails. As a jag, I felt free, I felt emboldened. I felt obligated to provide that advice to commanders. That was my job, was to take the law and help the commander work through the questions about whether or not and how military operations can be conducted, because the how is also very important. Just answering the question of whether or not the order I was given is lawful is just one element of the equation. The next piece of it is, are the weapons I'm going to be using, are the methods that I'm going to be employing also legal under domestic and international law? And when the JAGs, the judge advocates, General of the army and Air Force, were fired back in February with the only rationale given that the law should not stand in the way of military operations, that sent a shiver through the spines of folks like Gene and me who have served as judge advocates. Because what that meant was both the firing and the rationale that was given in a variety of press interviews after the fact that suggested that what I had been doing for the last 35 years no longer made a difference, was no longer going to be important when we considered whether or not orders given to conduct military operations were going to follow the law. So that particular decision, shrugging emojis aside among the group of people who had done this work for many years, it really just rallied us to point out to our fellow citizens that this seemingly innocuous decision to fire the jags at the top of the Judge Advocate General's Corps of the Services was a lot more than what they thought it might be. And that's what started us down this road that resulted in our peace and just security, to point out that jags are absolutely necessary to the process of putting together these military operations, executing them. What has happened here is a perfect illustration of the fears we had with the President saying, I now am the final authority to determine whether or not anything in the executive branch is lawful or not. What he has done is he has basically taken the role of the jags at the lower levels, and he has basically taken that authority to himself and to his Attorney General. And so I don't know this for sure, but I suspect that the legal opinions that led to all of the things that are happening in the Caribbean and perhaps the posting of troops around the country in various Cities weren't influenced by what jags said to their commanders, but ultimately were only influenced by legal opinions that were given directly to the President and the President then executed based on those opinions.
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C
Yeah, I think it's worth connecting some dots, going beyond the immediate confines of our conversation here. So Congress provided that the Judge Advocates General, the so called T jags, that's the acronym, have fixed terms of office. They have four year terms of office. They don't typically serve, or they don't invariably serve four year terms, but on paper that's what they're supposed to have. And what the President has done by firing several of the T jags is of a piece with the expansive notions of removability of senior federal officials who also have fixed terms of office. And I'm thinking of members of the National Labor Relations Board, a member of the Federal Reserve, I mean, every agency in sight, some of which have been so decimated that they can't even muster a quorum. But the point is that the removal of the T jags is not sort of trivia, you know, off on the side. It's a part of a larger pattern of expansive unregulated power by a single person. Now, the other thing is this. I was a junior officer when I was on active duty many years ago, and I was a judge advocate in the US Coast Guard. I prosecuted cases, defended cases. Since leaving active duty, I've represented a lot of people in all branches of the service. And the T jags and their subordinates in uniform have been my adversaries, both in courts martial and in collateral proceedings in the federal courts. And I counted on them to play it straight. They were my adversaries as lawyers. I did my job. I expected them and was not disappointed in this. I expected them to be zealous advocates for the government, admittedly, and Steve can verify this because he was a Deputy TJ AG of the Air Force, also performing those functions of a senior federal lawyer, which is you're also supposed to be doing justice. But one could disagree depending on which side of the street you were on, as to what the circumstances required. But I always felt that the game was being played. Not that it's a game, but the process was proceeding in a way that where everybody was trying at least to apply neutral principles set down by Congress, familiar principles of military law. And there was a kind of settlement as to how things were supposed to function. And that settlement has now gone out the window. And that to me is deeply disturbing. I think we might want to talk about some of the other social, political aspects that have bubbled to the surface in this cauldron. And I'm thinking now about the very strange proceedings that were held at Quantico and on board an aircraft carrier a few days later, which I think have truly corrosive effects on military law. I think Steve is probably in a better position to comment on those effects.
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A
I was about to ask the exact same question, but I also just want to pick up three threads that that are emerging in this conversation. One is what you just said, Gene, which is what we would call, in terms of the Justice Department, a presumption of regularity. Right. We assume that the Justice Department is in good faith and that has fallen away. There is the, you know, do you really want this job? You're going to have to do as you're told. And that was such a blatant theme at Quantico. And then this other thing, which I just want to name because you're both describing it. And it also emerges in this sort of Pete Hegseth Donald Trump performance last week, which is who knows what the law is? You know, that which was settled is now uncertain. And in the face of that uncertainty, follow orders. I feel like those are the three sort of themes that I'm pulling out of what you've said so far. And now I really will turn it over to you, Steve, to talk about the ways in which those events were again, I think it was easy to spoof it and say, you know, this is a Saturday Night Live skit. But in many, many ways that signaled, I think, a real change in all three of those axes.
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B
Those are really good observations. And, you know, I've also been trying to tie together all the various threads that run throughout everything that we've talked about and things that we haven't thus far. And the way that I've done it, and it may be of some help to your listeners, is by going back to some principles that I learned early on in my military career, starting with my being a cadet at the Air Force Academy, where we had a thing called the honor code. The honor code at the military academies focuses primarily on the integrity that is expected of military officers. At the Air Force Academy, the honor code says we will not lie, steal, cheat or tolerate anyone who does. And so it's focused more on integrity than anything else. But but there's also principles in international law, international humanitarian law, which govern the conduct of military operations. It's the international law that I, as a judge advocate would advise my commanders about when it came to deciding Whether or not going into battle and how you conducted yourself while in battle would proceed. And the principles in international humanitarian law that incorporate this idea of honor are principles like not targeting civilian populations, like using only so much force as is necessary to achieve the advantage that you want to achieve. So there are lots of principles in international law that form the law itself that are transformed in our domestic law into statutes that govern when and how the military can be engaged in a variety of different operations. So what I've been preaching since the law has become much more confusing, less certain. All the things that we pointed out in our piece, I've been preaching. Let's return to first principles. Let's return to thinking of ourselves as practitioners of an honorable profession. Honor is important. Honor should be our touchstone. And when I went through Secretary Hegseth's speech and tried to find the word honor anywhere in it, the only place I found it was when he referred to the idea that if anybody in that room found what he was saying to be objectionable, the way he described it is. If anything I've been saying makes your heart sink, do the honorable thing and resign. That's the only place in that entire conversation where he talked about honor. That concerns me more than anything. If we're going to advocate for a military that is effective, efficient, and lethal, which is the touchstone that this Secretary has established for the efficacy of our military, where is honor in any of that? Honor ought to be our ultimate objective. Honor in the way that we conduct our operations internationally with respect to our adversaries. Honor when it comes to how we deal with our fellow citizens here in the United States. Anyone who's worn the uniform knows what honor means, and that ought to be the touchstone that links everything that we've been talking about.
- [36:27]
A
Gene, you're talking in terms of, you know, what's happening in the sort of larger political and legal ecosystem beyond the, you know, what we've focused on now. We just talked about Quantico, and definitely amplify if you have thoughts on that. But I think the other thing we have to talk about is what's happening in Portland, Oregon, what's happening in Chicago, in a really stunning opinion, foreclosing the possibility of sending in the National Guard. In Portland last week, Federal District Judge Karen Immergut wrote what felt like an unappreciated sentiment to me, which is she wrote, this is a nation of constitutional law, not martial law. As of this taping, her opinion, or part of it, is going before the Ninth Circuit, which may decide something Very quickly. But I just want to note, and I think this goes to your point, Jean, about what else is happening. We had Stephen Miller in response saying that the judge engaged in, quote, legal insurrection. This mounting drumbeat from the administration invoking the word insurrection to describe lots of things that are not insurrections by any means. Here's President Donald Trump on Newsmax.
- [37:44]
B
The Insurrection act, is that going to be formally invoked? Is that a way to kind of get around all this opposition? Well, it is a way to get around it. If we don't have to use it. I wouldn't use it. The if you take a look at what's been going on in Portland, it's been going on for a long time. And that's insurrection. I mean, that's pure insurrection.
- [38:05]
A
I really want to get to the sort of what feels like the gravamen of this issue for me, which is they are really building up to saying there is an insurrection happening in cities and we need to send in the National Guard. And there seems to be a view that if you just call everything and anything from, you know, antifa to dancing frogs on the streets of Portland an insurrection, you are laying the groundwork for a really chilling thing that comes next.
- [38:35]
C
Talia, that's an understatement. Shocking. Let me comment. The event at Quantico was very telling on a number of levels. And one could listen to Mr. Hegseth. He wanted a photo op. I actually thought that the generals and admirals and senior enlisted advisors were going to be asked to sign a personal loyalty oath to Trump. That didn't happen. That was a fever dream of mine. But effectively that was the message, mission accomplished. But what President Trump said, every single sentence and fragment of a sentence that he uttered has to be taken extremely seriously. He said during his first term, I think during his first campaign, even that I believe what I say and I say what I believe. I would take him at his word. Now, one of the numerous things that a person could find very disturbing, as I did, was his reference to an invasion and an invasion from within. There are only two possibilities that those phrases describe. One is a Trojan horse, in other words, that somebody has slipped into the United States of America and is going to foment a rebellion. Basically, there's no evidence of that. So we set that aside. So therefore, we turn to the second possible meaning. And the second possible meaning is description of an incipient civil war. And he has referred to both the active component of the armed forces, the federal active component, and the National Guard. His use of uniformed personnel in Los Angeles, in Portland, Chicago, and threatened use elsewhere smacks of grooming. It's a normalization of the presence of uniform military personnel in our country at times and in places when they are not needed. That's a key fact that Americans have to absorb. The second fact that Americans have to absorb is the fact that we have elections coming up. Here I am again connecting some dots and you bear with me, but I connect that to the effort by the Department of Justice, headed by Pam Bondi, to obtain the voter registration list of every jurisdiction in this country. And I'm here to tell you that I'm deeply concerned that the administration will combine these several initiatives, like at the end of a fugue in music. All of these themes are going to come together. I fear, and I think it's a well founded fear in interference with the orderly conduct of next year's federal elections that disturbs me. I won't even go into the next question, which is should we also take seriously Mr. Trump's repeated, more or less jocular suggestions that maybe he's entitled to run again for president, or that there might be some disturbance in the next presidential election that might necessitate emergency circumstances, a declaration of martial law, whatever that would cause him to continue to reside at 1600 Pennsylvania Avenue.
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A
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C
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A
And let's return now to my conversation with General Steven Lepper and Eugene Fidel. Steve, you, as part of your former Judge Advocates working group, actually just penned a letter to Congress this week, a memorandum, I guess I should say, warning about exactly what Gene just invoked. You know, possible endgames here. And you also landed at subverting the midterms. And I'd wondered if you have thoughts about that because it's quite, quite terrifying to read that it's a short, short hop from where we are to where that could go.
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B
And we're not the only ones who thought of that. Governor Pritzker in Illinois told MSNBC he has the same concerns that what's being done now is an effort to normalize the idea that the military can occupy cities so that when we do hit the midterms or even the presidential elections, having the military providing security for polling places won't seem like such an unusual thing. But yes, we put together a memorandum for Congress. We started this process after the firing of the T Jags because we wanted to express our concern and provide Congress some suggestions for how they might deal with those concerns. The concern that the law has becoming less and less relevant to how military operations are conducted. One thing that we did not include in that memorandum, which goes back to your previous question about insurrection, is that if Stephen Miller is correct and that the President has a plenary authority to decide what is and what is not an insurrection, which is a key element of the case before the Ninth Circuit, then, like his executive order that says I'm the one who determines what the law is for the executive branch, if the courts uphold this idea, that he also has the exclusive authority to decide when an insurrection occurs, then, you know, facts be damned. Anything that happens anywhere could be labeled an insurrection and could be the trigger for deploying troops. So this is really, really of concern not only for elections, but one of the other situations we talked about as we looked in our crystal ball and wanted to alert Congress to the possibility this might occur is dealing with domestic terror organizations. What is a domestic terror organization? Well, the law doesn't have any provisions for domestic terror organizations, but the president issued an executive order recently that said that Antifa is. Antifa is not even an organization, let alone a terrorist organization, but he's branded as such. And so one of the concerns that we expressed to Congress was what does that mean for the use of military personnel? Could he now deploy military personnel to deal with Antifa, which he has defined very broadly, and could that then be the trigger for using the military to. To deal with his radical left opposition? We suggested also some specific things that Congress can do to avoid these things from happening.
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A
I want to get to that right after we get to the boats, because Gene raised them and we haven't fully explored it. But I would just connect up what you just said, Steve, to what the kind of quote, unquote, narco trafficking boats, you know, moving between Venezuela reportedly killing, I think, 21 people to date, with no plausible legal justification. It was fascinating to hear Pam Bondi speaking Wednesday saying that they plan to go after Antifa in exactly the same way.
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B
We're not going to stop at just arresting the violent criminals we can see in the streets. Fighting crime is more than just getting the bad guy off the streets. It's breaking down the organization brick by brick, just like we did with cartels. We're going to take the same approach. President Trump, with Antifa, destroy the entire.
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C
Organization from top to bottom.
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B
We're going to take them apart. Thanks to your bold leadership and the designation of Antifa as a terrorist organization, which is exactly what they are, Americans will no longer tolerate their unhinged violence.
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A
I think if there's a sort of unifying theme to what you're both saying, it's just occluding and confusing and going so quickly that, you know, these extrajudicial killings at sea then become the template for how you're gonna think about Antifa and other domestic terrorist groups. Jean, tell me if I'm overstating that, but that's seems to be the line being drawn, and I think a lot of us missed it.
- [49:45]
C
Well, some people missed it, but I think that is the line that's being drawn. And there's a kind of flood the field approach that the administration has taken. Just push every button in sight, suborn or compress the media environment, stifle voices and so forth. We have to be very, very concerned. And here I hearken back to the Tonkin Gulf incident that the older people in the audience may recall, or people with a bent for history, fake events that are seized upon as a casus belli as a basis for war. In the Vietnam War, President Johnson basically created a fake attack by North Vietnamese vessels against a couple of US Destroyers. And that was seized upon as a basis for ramping up the whole thing in Vietnam, I believe what, unfortunately, we're seeing in the Caribbean. It's still called the Caribbean last time I looked. It's not the Gulf of whatever Gulf of Mar? A Lago. We're seeing effectively the initiation of a war, the purpose of which, on one level is to unseat President Maduro of Venezuela. It's another example of this determined effort to turn back the hands of the clock every single way you can. That's why there's a portrait of President Teddy Roosevelt in a place of honor in the Trump White House, as if we're rerunning the Spanish American War of 1898. That's why things like there's a war on the federal agencies, independent agencies that Congress created for a very good reason. That's why you're seeing things like turning back the hands of the clock on civil service. The Civil Service Original act was, I think, enacted under maybe Chester Arthur or before. That's what's going on here. The one thing that hasn't quite happened is a return to the gold standard. Except that I noticed that the other day there was an idea of having a commemorative coin based on our country's 250th anniversary with the president's likeness on it. That struck me particularly because early, early on, I jocularly, instead of a picture of President Trump, I had a picture of a coin that was issued when Nero was emperor of Rome. And I have to say I think I saw around the corner somehow to where we are now. But I put nothing beyond this president. And I, frankly, am terrified. I'm terrified for this generation. I'm terrified for the next generation. I'm terrified for my granddaughter's generation.
- [52:38]
A
I only have the both of you for a moment, but I'd like to, because I'm even more terrified than I was 50 minutes ago when this conversation began. But I'd also like to end on a note that Steve ended an Answer on which is there are things Congress could do tomorrow. And Gene, you made a point in another interview I heard you say you can get private legal advice. There is an independent duty, I'm going to say it for the third time, to seek legal advice. If you think that you are being asked to follow an unlawful order, I would love for you both to say why it is that you think that as chilling as this moment is, there are things that can be done. This is not inevitable or inexorable. Jean, you want to go first?
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C
First of all, on the macro level, Talia, I think everybody, every citizen in this country, every legal resident in this country, everybody in this country has agency that even includes members of the U.S. house of Representatives and the Senate. People have power and they have to exercise it. They have to exercise their vocal cords, they have to get out and vote, they have to run for office and so on and so forth. That's the good news. The bad news is it's going to take everybody to keep this village from burning down. And that's tremendously critical. So I'm basically an optimist, as strange as that may be. I think this is a fantastic country. There's never been a finer country to live in for anybody on this earth. We ought to keep it that way, but we've got to have everybody pulling in the right direction with also got to calm down instead of fomenting divisions in the country. Back to the military here for a minute, doing things that are divisive, turning the military into simply another part of the base, preventing ICE from becoming another armed force, which we're well on the road to, unfortunately. But let me turn it over to Steve. He may have some thoughts as well in response to your question.
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B
Well, thanks for asking the question, because I think it really is important to leave your audience with some hope. And the hope I have is based on my 35 years in uniform, my four years before that at the Air Force academy, and my 18 years before that as a military brat. My dad was in the Air Force. And throughout my entire life, I have come to know the men and women of the military. And I believe that despite the deliberate efforts that are underway right now to dismantle the architecture that existed to ensure that military operations and orders within those operations were lawful, we have men and women who are serving as commanders, as judge advocates, and people who are going to execute those orders, who are as driven by the honor they feel wearing the uniform as any order they could be given. And I believe that at the end of the day, that honor that they feel, that commitment to the Constitution that they make when they raise their right hand and swear an oath to the Constitution and not to any one single person, will ultimately prevail and will ultimately result in the members of the military reinforcing and re establishing those guardrails. That's the only hope I have. And I, I really do think it's based on a lot of, on a history of people in the military always wanting to do the right thing.
- [56:27]
C
A final word for members of the military. If listeners are in uniform or if a loved one that they know is in uniform and people have questions about the lawfulness of orders, there are places you can go. One such place is the Orders Project. You could look it up online. The Orders Project, which has a posse of former judge advocates who are willing to take calls and give the kind of confidential, competent, specialized legal advice that people with those questions need.
- [56:59]
A
Steve Lepper and Eugene Fiedel, I want to thank you for your service and then for this really urgent service that you are doing now, trying to both clarify and to remind us that this is fixable, but we have to fix it. Thank you both for being with us.
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C
Thank you, thank you.
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A
That's all for this episode. Thank you so much for listening and thank you so much for your letters and your questions. Keep them coming. We are reachable by email@amicusatslate.com and you can always find us@facebook.com 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. On today's Amicus bonus episode, Mark Joseph Stern and I are taking a look at Trump's I'm sorry the Justice Department's case against Letitia James, who was indicted on Thursday following the Comey indictment. Of course, Adam Schiff will be up next, at least according to Donald Trump's malicious prosecution hit list. And Mark and I will also take you through Tuesday's arguments in Chiles versus Salazar, the Colorado conversion therapy case. 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. Hillary Fry 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. Will be back with another episode of Amicus next week.
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And, Doug, here we have the Limu imu in its natural habitat, helping people customize their car insurance and save hundreds with Liberty Mutual. Fascinating.
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A
Fascinating.
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B
It's accompanied by his natural ally, Doug.
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A
Uh, Limu is that guy with the binoculars watching us?
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C
Cut the camera.
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B
They see us. Only pay for what you need@libertymutual.com Liberty Liberty. Liberty. Liberty Savings Fairy, underwritten by Liberty Mutual Insurance Company and affiliates, excludes Massachusetts. Hi, I'm Josh Levine. My podcast, the Queen, tells the story of Linda Taylor. She was a con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen, and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and.
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C
What was done in her name.
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B
The great lesson of this for me.
- [60:06]
A
Is that people will come to their own conclusions based on what their prejudices are.
- [60:11]
B
Subscribe to the Queen on Apple podcasts or wherever you're listening right now.