Bulwark Takes – Command Post: "Trump Wants JAGs as Immigration Judges. That’s a Disaster."

Date: February 12, 2026
Host: Ben Parker & Mark Hertling
Guest: Margaret Donovan (Veteran Army JAG, former federal prosecutor, Yale Law lecturer)

Overview

This episode of Command Post, a segment of Bulwark Takes, explores the Trump administration’s reported plan to detail military Judge Advocates (JAGs) into federal immigration judge and prosecutor roles—a policy described as a potential disaster by the hosts. General Mark Hertling, Ben Parker, and guest Margaret Donovan dissect the implications for the military, the justice system, and democratic norms, mixing firsthand experience with constitutional and operational analysis. The episode also discusses the chilling effect of recent attempted prosecutions of former service members in Congress for encouraging disobedience to illegal orders.

Key Discussion Points & Insights

1. JAGs as Civilian Prosecutors: The Command Perspective

[03:12 – 04:07]

• General Hertling summarizes his Bulwark article highlighting dangers in transferring JAGs out of military units:
  • Disrupts unit discipline/morale.
  • Removes essential legal support for commanders.
  • Imposes immigration and criminal law duties on lawyers untrained for them.
• Margaret Donovan concurs, offering a unique dual perspective from her Army JAG and federal prosecutor careers.

Notable Quote:

"My concerns...were pulling a lot of lawyers...upward of six hundred out of the military would create problems...with unit discipline and morale...and lawyers aren't necessarily trained for conducting immigration cases."
— Mark Hertling [03:25]

2. What Do Military JAGs Actually Do? Misconceptions & Realities

[04:07 – 08:40]

• JAGs occasionally assist as Special Assistant U.S. Attorneys (SAUSAs) in minor cases (DUIs, thefts) on federal military installations—a role nothing like full-scale federal immigration prosecution.
• JAG duties described: legal guidance for wills, military justice, embedded operational advice, defense services—not complex civilian felony immigration trials.

Memorable Moment:

"You're at a courthouse on a federal military installation...prosecuting misdemeanors...not...felonies, not immigration. The results are going to be exactly what you would think they would be if you asked a lawyer to practice something they've never done."
— Margaret Donovan [06:47]

• Potential disaster: Assigning 30-40 JAGs at a time to complex federal prosecution or immigration cases would result in legal and appellate problems, procedural mistakes, slowed processes, and possible miscarriages of justice.

3. Impact on Military Command & Legal Integrity

[09:08 – 13:44]

• Commanders depend on JAGs: Without enough lawyers, remaining staff overwhelmed, risking both operational discipline and due process for soldiers.
• Unique ethical position: Military lawyers are trained to question orders when warranted, requiring independence and constitutional fidelity.
• JAGs can't easily resign: Unlike DOJ attorneys, JAGs assigned to roles divergent from their expertise (e.g., mass immigration prosecution) are unlikely or unable to quit—creating career and readiness harms.

Notable Quote:

"Military lawyers are really serious about the oath...officers of the court and officers of the military...You might be the only person in the room saying, 'I don’t think that’s a good idea.' You need a fortified spine for that."
— Margaret Donovan [11:02]

4. The Legal Dilemma of Disobeying Illegal Orders

[14:39 – 18:45]

• UCMJ primer: Orders are presumed lawful; if patently illegal, there's a duty not to follow—but the margin for error is perilously thin.
• Troops need legal support: Without enough JAGs, both commanders and enlisted could be left dangerously uncertain about the legality of orders under controversial policies, e.g., Insurrection Act or overseas operations.

Notable Exchange:

"It’s not confusing in the sense that you’re damned if you do and damned if you don’t...the soldier...has to be right 100% of the time or it’s a crime." — Ben Parker [17:27]
"Yeah, basically...But, you know, if you follow [the illegal order], you’ll be prosecuted for a crime." — Margaret Donovan [17:41]

5. Real-World Military Lawyering: Advising Combat Strikes

[18:45 – 23:19]

• Margaret details JAG work in strike cells: Advising in real-time on rules of engagement, targeting legality, and international law—a job requiring expertise, speed, judgment under fire.
• Example: Advising on the legality of striking a mosque used for arms storage, with all rules of engagement and international law principles in play.

Memorable Explanation:

"You have to be able to distill it to a five second delivery to the commander...the last thing a commander wants in combat is a JAG citing statute."
— Margaret Donovan [21:03]

6. JAGs as Immigration Judges: Systemic Problems

[23:19 – 27:19]

• Immigration judges are Article II (executive), not independent Article III judges—expectation of neutrality is at odds with executive policy pressure.
• JAGs ill-suited for sudden immersion in complex, high-stakes hearings—will result in errors, delays, poor rulings, and possible policy backfire.
• Case in point: A former JAG removed as an immigration judge after granting too many asylum claims demonstrates the tension between executive pressure and legal integrity.

Notable Quote:

"They are not deportation judges. They are immigration judges. They are there to call balls and strikes...it does not always work out the way [the administration] thinks when you assign people who pride themselves on character and being able to stand up for what's right."
— Margaret Donovan [26:25]

7. Long-Term Effects: JAG & DOJ Recruitment Crisis

[27:19 – 29:24]

• The prospect of being used as a "labor pool for DOJ" will make lawyer recruitment for JAG and DOJ harder.
• Lawyers don’t join military service with the goal of adjudicating immigration cases; forced assignments undermine morale, readiness, and the appeal of both public service and military legal careers.

Memorable Quote:

"You do not sign up to be a JAG because you want to be an immigration judge. Period."
— Margaret Donovan [27:47]

8. Grand Jury Refusal to Indict: Democratic Systems Resisting Executive Overreach

[30:30 – 33:58]

• Recent DC grand jury refused to indict Congressional veterans for reminding troops not to follow illegal orders—a rare "no true bill" in federal practice.
• Seen as an inspiring example of constitutional checks and balances at work during executive overreach—a nod to both original intent and current democratic resilience.

Notable Quote:

"The framers...built the Constitution thinking the people need to reserve some power...so you can invest power in a grand jury to reject a charge. It's almost like a last stand—that civil society is rejecting the actions of...authoritarian prosecution."
— Margaret Donovan [32:05]

Key Quotes & Memorable Moments (with Timestamps)

• "You're going to see basically the mistakes that happen when you have a brand new prosecutor."
  — Margaret Donovan [08:46]

• "If 20 of them take off, and only 20 of them are left, what kind of requirements are those remaining 20 going to have? Are they going to go nuts trying to deal with the legal issues?"
  — Mark Hertling [10:29]

• "What would I tell the Secretary about this policy? JAGs are not a labor pool for DOJ. If you want to be lethal, you've got to have a lawyer to make it make sense."
  — Margaret Donovan [29:51, 30:14]

• "Juries...as the most democratic part of the Constitution. Because it is just random people off the street, stick them in a room, make them make a decision."
  — Ben Parker [33:40]

Additional Segment Highlights

The Function of Strike-Cell JAGs (Military Law in Action)

[19:14 – 23:19]

• Legal review before, during, after strikes.
• Practical example: Deciding to hit a mosque used as an arms depot.

The Chilling Effect on Military Leaders

[33:58 – 34:43]

• Targeted legal threats against former senior officers in Congress have chilling implications for military-civilian relations and chain of command trust.

Conclusions & Takeaways

• The push to use military lawyers as immigration judges/prosecutors is rooted in short-term needs but threatens long-term legal effectiveness, military discipline, and constitutional norms.
• The JAG Corps’ unique training and ethos make its members poor fits for sudden, highly politicized immigration roles, risking not only operational failure but also damage to vital civil-military trust.
• Recent grand jury resistance to executive-directed prosecutions underscores the resilience of constitutional structures—but highlights the stress they are under in the current climate.

For more:

• Read Mark Hertling’s piece, “JAGs shouldn’t be civilian prosecutors,” at thebulwark.com
• Send questions to commandpost@thebulwark.com
• Subscribe to Bulwark for independent, in-depth analysis