Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Trump’s Insurrection Claims Could Lead American Democracy Off a Cliff

Date: October 11, 2025
Host: Dahlia Lithwick
Guests: General Steven J. Lepper (ret.), Eugene R. Fidell

Overview

This urgent episode of Amicus investigates the current crisis of American civil-military relations, focusing on the fallout from the Supreme Court’s 2024 presidential immunity decision and the Trump administration’s escalation of claims around “insurrection.” Host Dahlia Lithwick is joined by retired Air Force judge advocate General Steven J. Lepper and Yale military justice lecturer Eugene R. Fidell, whose recent piece in Just Security warns that American military officers now face their most grave test since the Civil War: defending their oaths and the Constitution in a landscape where the President claims plenary, unchecked authority over the military and national security. The conversation provides a detailed analysis of the legal, historical, and practical risks posed by these developments—not just theoretical, but unfolding in real time.

Key Discussion Points & Insights

1. The Unprecedented Moment for American Military Officers

• Historical Analogies & Gravity

  • Fidell and Lepper’s Just Security piece claimed: “At no time since 1860 have military leaders confronted such a grave challenge to their oath to support and defend the Constitution.” (04:49)
    • The point is not hyperbolic, and the guests emphasize the meaningful difference between divided loyalty in 1860 (between state and federal government) and current pressures (between country and individual executive).
    • Fidell: “Now the tension is between loyalty to the country and loyalty to an individual who happens to be the incumbent Commander-in-Chief.” (08:28)

• Uncertainty in Legal Boundaries

  • Lepper explains that the traditional legal "guardrails" for military action are now in doubt because “the entire legal terrain ... has become a lot less certain” (05:22), mainly due to new doctrines and the Supreme Court’s immunity decision.

2. The 2024 Supreme Court Immunity Decision and its Implications

• Trickle-Down Immunity, Breakdown in Accountability
  • The Court’s decision to grant the President sweeping immunity for official acts is critiqued for ignoring the implications for military chain-of-command.
  • Lepper: “Neither the majority nor the dissent really thought about the ramifications of this for the military.” (10:55)
  • This creates “confusion about whether a particular order may be lawful or not,” which is a massive departure from prior certainty.
  • Fidell on the “Seal Team 6” assassination hypo: “Lawyers and judges love what's called the Parade of Horribles … But we don't need to puzzle through weird hypotheticals. It's happening right now in the Caribbean.” (12:54)
  • Real-world consequences are noted: U.S. military force was deployed against boats in the Caribbean, resulting in deaths and raising questions about legality and downstream accountability for lower-level personnel (15:00–16:31).

3. The President’s Plenary Authority and the Weaponization of ‘Insurrection’

• Defining Insurrection at Will

  • Stephen Miller, Trump advisor, asserts: “If the courts uphold this idea that he [the President] 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.” (01:46, 45:13)
  • This principle enables everything from urban deployments (e.g., Portland, Chicago) to election interventions under the guise of security.
  • Lithwick on Judge Immergut’s ruling blocking National Guard deployments: Judge Immergut emphasizes, “This is a nation of constitutional law, not martial law.” (36:26)

• Normalization & Grooming Public Perceptions

  • Guests warn of the administration’s drive to normalize military presence in civilian settings (Quantico speech, urban deployments), making future “emergency” deployments during elections feel like established practice (38:35–42:15).

4. Pardon Power and its Chilling Effect on Lawful Conduct

• The pardon power, as deployed in Trump’s first term and now, removes a key disincentive for following unlawful orders.
• Lepper: “If the President gives a pardon forever ... The extension of immunity would do the same thing, but it wouldn’t require this particular President to make a decision.” (16:53)
• Fidell: “The person at the top ... skates politically. ... The people at the bottom end ... they're left naked and alone, basically, in terms of the administration of justice.” (19:42)

5. The Gutting of Military Legal Oversight

• Firing of Judge Advocates (“TJAGs”)
  • After the firing of top Judge Advocates General “because the law should not stand in the way of military operations,” Lepper says: “That sent a shiver through the spines ... Because ... what I had been doing for 35 years no longer made a difference.” (25:07)
  • Fidell highlights: The removals are “of a piece with the expansive notions of removability ... of senior federal officials ... It’s not trivia ... It’s a part of a larger pattern of expansive unregulated power by a single person.” (28:33)
  • Both see these actions as destroying the “presumption of regularity” and professional legal settlement that allowed the military to be reliably governed by law, not just order following.

6. Rhetoric, Uncertainty, and Erosion of Professional Norms

• The Honor Code and its Marginalization
  • Lepper: “Let’s return to thinking of ourselves as practitioners of an honorable profession. Honor is important. Honor should be our touchstone.” (32:54)
  • He observes—with concern—that in a recent speech by Secretary Pete Hegseth, “the only time he referenced honor was in saying ‘if what I say makes your heart sink, do the honorable thing and resign.’” (34:54)
• The Rule of Law Unsettled
  • Lithwick: “That which was settled is now uncertain. And in the face of that uncertainty, follow orders.” (31:40)

7. Risks to the 2026 Election and Democratic Stability

• Potential for ‘Securing’ Elections by Military Means
  • Lepper: There is a real fear, echoed by Illinois governor Pritzker, “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 ... having the military providing security for polling places won’t seem like such an unusual thing.” (45:13)
• Assignment of ‘Terrorism’
  • Orders branding Antifa (as an organization) as a “domestic terror organization” despite its lack of legal establishment creates a “slippery slope ... for using the military to deal with ... radical left opposition.” (45:13–47:56)

8. Call to Action: Congressional and Personal Agency

• What Can Be Done?
  • There are concrete legislative and oversight steps Congress could take to reassert legal guardrails (details touched upon but not fully listed in this segment).
  • Fidell: “Everybody ... has agency, that even includes members of the U.S. House of Representatives and the Senate. ... It’s going to take everybody to keep this village from burning down.” (53:26)
• Individual Responsibility in the Ranks
  • Fidell: "If listeners are in uniform ... have questions about the lawfulness of orders, there are places you can go. One such place is the Orders Project ... former judge advocates who are willing to ... give ... confidential, competent, specialized legal advice.” (56:26)
• Faith in Honor and Service
  • Lepper: “I believe that ... men and women who are serving as commanders, as judge advocates ... as driven by the honor they feel wearing the uniform ... will ultimately prevail and will ... re-establish those guardrails.” (54:45)

Notable Quotes & Memorable Moments

• “At no time since 1860 have military leaders confronted such a grave challenge to their oath to support and defend the Constitution.”
  — Eugene Fidell & Steven Lepper (Just Security article, cited at 04:49)

• “Now the tension is between loyalty to the country and loyalty to an individual who happens to be the incumbent Commander-in-Chief.”
  — Eugene Fidell (08:28)

• “We don't need to puzzle through weird hypotheticals. It's happening right now in the Caribbean.”
  — Eugene Fidell (12:54)

• “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.”
  — Steven Lepper quoting administration argument (01:46, reiterated at 45:13)

• “What this decision does is essentially makes the President a king.”
  — Lepper paraphrasing Justice Sotomayor’s dissent on Supreme Court immunity (11:27)

• “If we're going to advocate for a military that is effective, efficient, and lethal ... where is honor in any of that? Honor ought to be our ultimate objective.”
  — Steven Lepper (34:54)

• “He [the President] wanted a photo op. ... I actually thought senior military would be asked to sign a personal loyalty oath to Trump. ... Effectively, that was the message.”
  — Eugene Fidell, on Quantico event (38:35)

• “I’m terrified for this generation, for the next generation, for my granddaughter’s generation.”
  — Eugene Fidell (52:06)

Timestamps for Important Segments

• [04:49] – Context for the crisis: Oath of office and historical comparison (Civil War).
• [10:55] – Dissecting the 2024 immunity decision’s neglect of military impact.
• [12:54] – Real-world examples ("weird hypotheticals" are happening now).
• [16:53] – Discussion of trickle-down immunity and the President’s pardon power.
• [25:07] – What JAGs (military lawyers) do, and why their firing is alarming.
• [31:40] – Erosion of “presumption of regularity” and the new uncertainty in the law.
• [34:54] – Marginalization of “honor” in current military rhetoric.
• [36:26] – Federal judge blocks National Guard deployment, reinforcing constitutional over martial law.
• [38:35] – Fidell on normalization/grooming of military’s domestic role.
• [45:13] – Fears of military normalization at polling places, implications for elections.
• [53:26] – Empowering citizens and Congress to act now.
• [56:26] – The Orders Project: confidential legal advice for military unsure about order lawfulness.

Tone and Atmosphere

The tone throughout the episode is serious, urgent, and at times deeply anxious. The guests are sober, careful, analytical, and deeply worried—but also make an effort to emphasize hope, responsibility, and avenues for resistance both within the military profession and in wider civil society. The host, Dahlia Lithwick, maintains an accessible but pressing style, often underscoring the stakes and asking pointed questions to clarify what’s at risk.

Action Items & Resources

• Congressional Oversight: Pressure Congress to shore up legal boundaries and affirm the independence of military legal officers.
• Individual Agency: Encourage all citizens—especially those in armed service—to seek independent legal advice if confronted with questionable orders (see: The Orders Project).
• Civic Engagement: Stay informed, vote, and speak out against the normalization of military deployments in domestic politics.

This summary provides a comprehensive structure while preserving the language, urgency, and insights from the discussion—a critical listening guide and reference for navigating these complex legal and constitutional dilemmas.