
Mark Halperin opens the show with his reported monologue on why some Democrats are suddenly, uncharacteristically serene in declaring Donald Trump politically finished — and why GOP insiders insist they’re getting the moment wrong again. Drawing on fresh conversations with Republican strategists, Mark breaks down the four-phase comeback plan they believe is already underway, the policy resets they want from the White House, and why Trump’s State of the Union could become the make-or-break moment of his presidency. Next, Yale Law Professor Jed Rubenfeld joins Mark for a high-stakes conversation about the constitutional firestorm surrounding Trump’s recent drone strikes in the Caribbean. They explain why some critics call the actions “murder,” how the laws of war treat killing shipwrecked survivors, and why longstanding precedent may still give Trump a strong claim to authority. They also break down how the “second strike” became a national scandal and whether Congress has abandone...
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Mark Halperin
Hey everybody, Mark Calperin here.
Welcome back from the holidays. Hope you had a wonderful time with friends and family. I am happy to be back here with all this news going on, some interesting stories we're going to talk about today. I'm the Editor in Chief of the live interactive video platform two way and your host here to everything NextUp. Glad that you're here and part of our Nexter community. Great guests. Jed Rubenfeld, professor at Yale Law School is here. We're going to talk about very confusing, interesting question of what the President can do and his Pentagon can do in the Caribbean. If we're at war with cartels, with drug dealers, narco terrorists, what's allowed? What's not allowed in terms of taking human life? Really interesting historical, constitutional, legal questions and also just really great debate for the country to have. And Jed is one of the smartest people I know on these matters. And then after that, Katie Miller host, the Katie Miller Podcast. She's been at the top levels of government and the private sector as a strategist and advisor and she and her family are dealing with a lot of personal attacks and death threats. So Katie's going to be here to talk about how she navigates the complexity with her husband, Stephen Miller. Before that, though, my reported monologue on what's going on with President Trump and his political standing and whether he's due for another comeback. All that coming up. Next up, don't go away. If you're a homeowner in America, you need to listen to this. The FBI is warning about a type of real estate fraud on the rise of called title theft. And your equity is the target. Here's how it works. Criminals forge your signature on just a single document, then use a fake notary stamp and file the document with the county. Just like that, on record. They own your home using your ownership. They can take out loans against your equity or even sell your property. And you won't know about any of this until foreclosure or collection notices show up in the mail. That's why I'm partnering with Home Title Lock, so you can protect your equity. And find out today, right now, if you're already a victim, use my promo code, markometitlelock.com and you'll get a free title history report and a free trial of their million dollar triple lock protection. That's 24,7 monitoring of your title records, urgent alerts to any changes. And if fraud does occur, their US based restoration team will spend up to $1 million to fix it. Don't be a victim. Protect your Equity today. That's hometitlelock.com promo code. Mark. All right. Welcome back. Thank you for being here. Going to jump right into my reported monologue. I've been talking to Republicans a lot about where Donald Trump stands politically. There's not another election for a while and if you look at the history, Donald Trump booms and busts, moments of peril and moments of political dominance. Wasn't that long ago when Democrats were saying he was dominating everything and they worried about keeping up with him. He's at a low point. Now, the polling will tell you that. Not just the public polling from media organizations some of you maybe don't trust, but private Republican polling. Things are pretty dire right now. But history suggests don't give up on Donald Trump if you're a supporter. He's got a way back. And so I've been asking Republicans this week a lot of reporting, even over the holidays, as I had good fortune to spend time with some pretty senior Republicans. What's the path back? What can Donald Trump do to turn things around politically in terms of pr, in terms of momentum? And here's what I found.
You know, Mark Twain, political analyst, once.
Said the report of my death was an exaggeration that's the real quote. Sometimes you'll hear it another way. And then years later, Yogi Berra chimed in and said, it's tough to make predictions, especially about the future. So what I'm gonna tell you today is what both those guys who would have been kings of Twitter if they'd lived the right time, Twain was a viral troll of the first order. And Yogi, of course, a master of the existential hot take. I'm going to tell you, not a prediction, but what Republicans are saying, not just as the path Trump should take.
To come back politically, but what they.
Think he'll do, what the right thing is and the thing he'll do. Those words, the notion of the premature declaration of Trump's death and the concept of it's hard to predict the future they're echoing loudly right now across all of politics. In all my years of covering Donald Trump, I've seen lots of moments where the Democrats are saying, he's done.
And his Republican opponents, the Never Trumpers in the Republican Party, say, this is it, he's done. This one's different, at least on the Democratic side. I've never seen the Democrats so calm, so reasoned, so utterly serene in their collective prophecies that now Donald Trump has, yes, finally, after a very long career of improvising, finally reached the end of his political fishing line. Now, these types of people who forecast this over the last decade, they're normally capable of panicking pretty easily. They could panic in a grocery store checkout line, but now they seem like. Almost like they're serene monks. They're being meditative, centered, almost as if the universe has whispered to them, relax, this time you've got him. They're talking about Donald Trump's downfall in a much different way than they have historically. They're using very measured tones, as if they're just whispering to someone, the sun will rise tomorrow, or saying, the TSA line at LaGuardia over Christmas will be very long. Now, their confidence stems from what they believe is almost an overdue cosmic reckoning. They believe that Donald Trump is how they see him. He's got an unprecedented blend in their view of venality, impulsiveness, cruelty, shallowness, improvisation about improvisation and aposture as what they think of as a day trader in a hot tub. They think he's odious, and they think now his time has come, that all of this is coming home to roost with justice. Especially, they view justice for Trump, who they've seen since 2027 or 2020, 2016, rather as an accidental president. Now, normally when you hear these calls from the left of saying Trump's doomed, it comes from people like Heather Cox Richardson, the substacker, the liberal professor who's apocalyptic in talking about this stuff. And now it's changed. You're not hearing in front and center as much from people like Heather Koch Richardson, who you're hearing from is not Rachel Maddow. It's Mark Kelly.
Mark Kelly, the senator from Arizona, has become the cool, confident and cardigan face of this new moment where Democrats are saying Trump's cooked, he's done.
And it's not the Mark Kelly as a formal senator. It's a guy you're seeing on the.
Internet, on cable news, on social media. He has become kind of the resistance.
Designated wise man of the moment. The warnings now come with a different tone. They're no longer as hysterical or unhinged.
They're picking more carefully the things they're citing.
No more hysteria, no more rants of hair on fire saying the Constitution is being replaced. Now it's very clear. They're saying with confidence, and this is different than I've seen.
Your time is up, Donald Trump.
And this time we mean it. They're using the voice as if they're telling a child, no more screen time. But we know that that doesn't usually actually work through. So let's be clear right now. In certain blue parts of the country, Cambridge, Massachusetts, Berkeley, California, parts of Brooklyn, there is genuine delight at the concept that they see more clearly than they ever have and stating more commonly than they have that the Trump Continental Airlines flight is preparing for its very final descent. They look at his schedule changes, they look at canceled events, they look at medical reports. Every straight comment he meant, and they say, this is it. They say, as if they're political anthologists. Ah, yes. Note the subtle change in Trump's migratory pattern. Winter is coming for that bird, and they believe it's his final winter. This is calmer. The Mark Kelly wing is calmer, but no less certain. They say Donald Trump is struggling now, and they say he's lost his magical ability to wiggle his way out of wreckage the way he has so many times before. You're even hearing this from some Republicans, even some who don't wish Donald Trump to have a problem. I think the one that broke through for me most clearly was from Abe Greenwald over at Commentary. He wrote with a lot of solemnity, saying, this is when the wheels start to wobble. Talking about Donald Trump, Abe argues, in essence, that we could look back at this moment, at the start of Trump's, as the start of Trump's great unraveling. Here's how Abe lays out the case. He says Trump's triumphant visit to Israel when he unveiled his grand Middle east plan. He says that was the moment when things started to go bad, that Trump had been on a winning streak and now that winning streak has stalled. Abe uses the word wobble. Then, of course, there's been a cascade of events. You've seen crackups on the right over questions of anti Semitism. You've seen problems over in the aftermath of the death of Charlie Kirk. A lot of shock waves have gone through the President's base. The Epstein files, there's just, there's just been a lot of division on the right. And Abe says that all this has emboldened the so called paranoid hate peddlers, giving oxygen to a lot of the young males in this country who follow siren calls from certain voices. All of this has combined to produce political trouble. And the President's polls are not great. You had the midterm or the off year elections. Rather, it's a problem. And everybody around the President knows that this is not the high point. Some are more honest than others about where things stand. But right now, Republicans I talk to say there needs to be some sort of comeback, there needs to be some sort of change. And what that will entail is a challenge because the problems are many and it starts with the economy. People around the President, people who support the President in Congress and elsewhere want there to be change. Now, I want to pause something and say before I talk about the President's losing streak, he's not unfamiliar with losing streaks. He's got a very complicated relationship with winning. He loves to win and even when he's losing, he likes to tell you he's winning. But right now, Abe makes another point that's worth sitting with for just a bit and thinking about it, which is Trump always comes back, you could say, and Abe doesn't want Trump to fail. He makes that clear.
Trump always comes back. You've never seen him down forever. And of course the greatest example of that is after he left office in 21, he came back in one, in 24. When Trump deeds to course correct, history suggests he does. When he needs to reverse, he reverses. If he needs to pivot, he pivots.
He'll do whatever it takes, a triple pirouette, maybe moonwalk off stage, he'll do that too. Whether he can stage another comeback now.
Though, there's Reasons to wonder whether that's.
Right, whether Democrats are right when they.
Say this is different because he is.
A second term president, he is effectively a lame duck. And lots of the things that are bedeviling him now politically are a real problem that don't have easy solutions. So that's why I've asked Republicans across the board, where's the comeback? What does he need to do? I've talked to elected officials, to strategists, to pundits. How do you stop the wobble and reboot a presidency? That's at a very weird phase, right, because of where he is. So people have projected out for me four phases coming up. And that's when we talk about what's next. People are so caught up in a lot of places and in the moment. What's the president doing today, what's coming up tomorrow? We're talking about what's happening next. And as I talked to Republicans around the country, some in Washington, some not, they divided the time between now and the midterm. So 11 months from now into four phases. The first phase is now through Christmas, the holiday season, when things will slow down at least for a week or so. Then you've got the early part of next year in January through whenever the State of the Union is. Maybe at the end of January, they.
Haven'T set the date yet.
Maybe in February and then after the State of the Union through the summer and then from Labor Day through the midterm day next November, the sprint that will define a lot of the president's capacity to govern in the second two years. Republicans say that the first day of the Trump comeback, it's gotta be right now. He has to start in phase one. And what they'd like to see between now and Christmas and New Year's is what they say is a pretty achievable list of goals. Not telling you that these are all likely to happen, but this is what Republicans would like to see fall into line. Some the president controls, some he doesn't. One is win the special election in Tennessee Tuesday night for the Republican. Don't have a embarrassing victory for the Democrats that would make Republicans in Congress panic. Depose Maduro in Venezuela, something the president has been forecasting for a while. Do that without a loss of American life or any sort of entanglement. See if Witkoff and Jared Kushner can produce a Ukraine, Russia deal that not everyone will love. What would be an extraordinary accomplishment for the president? Finesse the release of the Epstein files. That's coming up again in this Period between now and Christmas. Figure out a way to start dealing with the health care issue, which is a huge political problem for the president. Maybe make some personnel changes. There's a lot of buzz in the air about certain cabinet members, whether the president will finally force them out or whether some of them might go. But personnel changes, ideally from the president's.
Point of view, from his supporters point.
Of view, would be an upgrade in terms of the people who were there. But also do what sometimes you need to do with a presidency that's in a bit of a wobble or a bit of a rut, which is turn the page, have a new narrative. And then there's a bunch of Supreme Court cases, cases pending, that will tell the tale of the president's capacity to get some more political wins and policy wins. Maybe some of those will come down here in December. Think of it like a geopolitical advent calendar. Every day, maybe a new surprise behind one of those little card cordboard doors. Today's treat, a peace plan. Tomorrow's surprise, a new health care rule. Maybe on Christmas Eve, Maduro in a bowl. We'll see. But phase one, people would like to see the president, his supporters would like to see him close the year strong. That's super important to them. Then we get to phase two. The huge hinge point of that, of course, is the State of the Union address. Why is that so important? The president gives speeches all the time. Because these Republicans believe that State of the Union will be the president's single biggest platform next year. He's going to have at least they're talking about having some sort of off year, Republican midterm, Republican convention. I think they'll do that. The president's speech there will be a big but the State of the Union will have a huge national audience and his chance to reclaim what Republicans say. It's got to be the number one priority for Trump comeback to become the whip inflation now guy. Remember that line from Gerald Ford? But they think Donald Trump has to go back to what he did to win the presidency for the second time, become the guy singly focused effectively on beating inflation. It's easy to do that, or at least talk about that when you're not the incumbent. But now he's the incumbent. It can't be about vibes. It can't be about grievances against Joe Biden. It can't be about the ghosts of the 2020 election. He'll keep having his cultural food fights, but it can't be about that. What they want to see is the president focused enough on affordability with good ideas to get people to see, yeah, this is the affordability guy. This is why we voted for this guy. There's an irony that this is what won him the election. And yet it's too often, in the view of these Republicans, not been what Trump's focused on. They want to see in the State of the Union, maybe released in the days around it, plan on health care costs, a plan on housing costs, something about the tariffs that get people to see that the tariffs are going to help with affordability and not hurt energy costs. A huge issue for people, even as some prices of energy have come down, like gasoline, electricity and other bills at home are really high for many groceries. Of course, he got to talk, in their view, daily, whether he's doing events, traveling the country, which he hasn't done very much lately. It's been more overseas, signing executive orders, proposing legislation. They want to see basically a sampler platter of kitchen table issues, the kind of thing pollsters recommend and talk about and urge him to focus on. Focus on. There's. There's a lot of punditry out there, a lot of punditry about what the president should do. And people have looked at this Tennessee race and said the reality is the candidate there, the Democrat there in this House race, has filled the vacuum and talked about affordability, effectively, because the president has not put forward an agenda that other Republicans can talk about. Democrats could keep owning this issue if they own the affordability. Affordability issue. Leading up to the midterms, the Republicans will almost certainly lose control of the House and the president will be politically wounded. So while there are other issues people would like the president to advance on, affordability, particularly around the State of the Union, is the number one thing that they want to see. This is an extraordinary challenge because none of these things have easy solutions. None of the things housing, food prices, energy prices, the solutions are not easy. What the President can do about it, we'll see. But what Republicans want to see is this done in the context of the State of the Union address. Super important to them.
And so what they want to see in the State of the Union is not just a list of tangible policies of specific things that voters can look at, particularly voters who don't pay daily attention to politics. They wanted something tangible. Like when he talked in the campaign a lot, several Republicans brought to me when he talked about no tax on tips, that was really key because people could get that even if it didn't affect that many people. They also care about the style Republicans have not loved, at least some of the ones I've talked to, the Brusker style, shall I say? They don't want to be brusque. They want them to be Reagan esque in the State of the Union. They don't want him to be insulting people. They want to have a president who's confident, funny, optimistic, and this is key for a lot of them prepared. They, they want to see a president who seems conversant with the policies he's talking about. And then they want the White House policy shop and the White House communication shop to galvanize support after the State of the Union daily drumbeat of events, even as the President's going to talk about other stuff too. They want those executive orders, they want a legislation, ideas. They want affordability in the title of everything political branding 101. They want us to have. If he says affordability enough, he can own it. And then we get to phase three right after the State of the Union and into the summer. And this is where Republicans say once again they want the president to focus on what got him elected. Right. They say what got him elected are the things that can get him to have a turnaround in his presidency. Energizing the base, broadening the coalition. That's politics 101 as well. One thing they want to see is more appeal to young men. If you look at the special elections, if you look at the polling, young men, which is such a key part of the constituency that got Trump elected in 2024, they've drifted away. White, black, Hispanic. They want targeted policies, domestic policies, not just rhetoric, although they'll take him going to a few more athletic events, maybe doing a few more podcasts. They want to give young men something real to grab onto about the Trump presidency. Jobs opportunities, initiatives that feel tangible to them. And then the other thing they'd like to see, and again any politician wants to do this but they say the President's got away from it is one in politics are called 8020 issues, issues that where you have dominance over the other side. And health care is not one of those issues. And so they want the President to defuse that. But then they want them to pick issues, particularly if they can be on the economy, that divide the Democrats sharply, unify the Republican Party, thrill the MAGA base and can also appeal to independents, those independents who maybe check the news once or twice while they're waiting for their Uber eats to arrive, but really.
Aren'T focused on the day to day minutiae of it. What could those issues be. Well, there are a lot of discussion about that.
I'll talk about that probably another time.
But trust me, Republicans right now are.
Gaming out this question they're doing on Capitol Hill. The lobbyists are doing it.
The folks at the White House are doing it.
They're trying to figure out what are the specific policy things that the President can be enthusiastic about and can be.
And can be explained easily.
Okay, so in the senior Republicans I talked to, some inside the Trump camp itself, some on Capitol Hill, some elsewhere, boils down to three things. Winning politically in as many realms as possible to dominate the news cycle with victories. He's had too many defeats now. He's had victories mixed in there, but.
The loudest things, like Epstein, like the.
Elections in November, like fighting over health care, too many, too many defeats. They want to see more victories. Second, again, they want to put affordability at the center of his presidency. When people think about the Trump presidency, they say it can't be about some of these peripheral issues. It has to be about making the.
Economy work for working class voters.
And then finally, they want him to do whatever it takes to bring together two things that overlap but are different. Right?
The Republican Party, the traditional Republican Party.
On one end and then Mag on the other. And you've seen so much divisions, conversations about podcasters and Epstein files and some of these international issues. And then this basic question of is the President talking enough about affordability as opposed to, say, international stuff. There's, there's a desire amongst Republicans to bring the party together on things they agree and ideally around issues where the Republican position is more popular than the Democrats.
Seems basic, but many of the Republicans.
I've talked to this week say the President's gotten away from that.
All right, so in the end, everyone.
I talked to on the Republican side agrees. If the President wants to have some kind, some sort of comeback, they think.
He can do it because he's done it before. He's done it a lot before.
You think back to. I was at Mar a Lago last week, and I talked to folks you think back to the President's, after he left the White House in 2021, there were many people who said, well, that's it. He's not going to run again. Or if he does run again, he'll lose.
That's one of the most epic comebacks.
In American political history.
And so that's the biggest example.
But there are many. They have supreme confidence that this president.
Knows how to engineer a comeback. That if he does want to change Course, he knows how to do it and he'll do it. If he wants to shake things up, maybe make some personal changes, he can do that. But no one I talked to, even the most loyal Trump people privately denied the wobble is real. The moment for him is fragile. The next few months, now in phase one and phase two, will determine whether this chapter becomes a political footnote, or as some are now saying, particularly on the Democratic side, that this is a turning point, that a lame duck president with all these political problems, who they believe has lost a step, is not going to be able to turn things around. Every two years, really, almost on a nonstop basis. The American electorate, the American people say, surprise me, give me something I wasn't expecting. That above all else, is Trump's specialty. It is what has allowed him to thrive. It is what has allowed him to survive. It is what has allowed him to change course. When he needs to show a new chapter of this long running drama, he's.
Been able to do it.
And what his supporters say, again, above all else, build something new around the economy and you can't have a comeback. Democrats remain more confident, more quietly confident than I've ever seen them in the decade that they've predicted Donald Trump's political demise. Prediction is difficult, especially about the future. But you can be safe in predicting that whether Donald Trump follows exactly what this group wants to do or not, he will not lay down with low poll numbers. He will not give up. He will not deny himself an opportunity for at least one more comeback, to.
Try to keep the House of Representatives.
To try to bring the American economy back and to try to achieve all these things that he's working on, it's an extraordinary moment for Trump's presidency. This may be different. Mark Kelly may be right. The string may have run out. But if you look at Donald Trump's history on the national stage, if you look at his earlier period as a real estate developer, as someone who has faced adversity before, like Bill Clinton, Donald Trump doesn't give up. Like Bill Clinton, his enemies underestimate him and his friends worry too much about him when they're concerned that this is it, this is the final and dark chapter. Let's see what happens between now and New Year's here in phase one. But I get the sense from talking to people, particularly those around the president.
He'S well aware that he needs some victories, he needs to talk about affordability, and he needs to find a way to unite his party rather than preside over a division. We'll see what happens. All right. Thanks for listening. If you want to hear what I think, always you can listen. If I get to hear what you think, you can send me an email. Send me an email nextup halpernmail.com love to hear from you and be sure.
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Grateful to have you here.
All nexters quick break and then when.
We come back, Jed Rol will be.
Here to talk about what's going on in the Caribbean. That's next up.
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Mark Halperin
All right, so this thing about the Caribbean and the Pentagon is an evolving story. Always a little bit of a risk on a podcast to talk about an evolving story, but we got to talk about this one because it raises so many compelling issues. Some are political, some are pr, but a lot of them are legal. And it's an incredibly fascinating topic about which people have reasonable minds and, and agreeable people can disagree. So joining us now, someone who's never fully disagreeable, sometimes partially, Jeb Rubenfeld, professor, Yale Law School, host of the Straight down the Middle podcast, and a guy who writes for the Free Press about legal matters and has been talking about this stuff for a while, joins us now. Professor, welcome in.
Jed Rubenfeld
Oh, thanks so much for having me. Pleasure to be here.
Mark Halperin
So there's two basic issues, and again, there's so many dimensions to this. One is just the general question of the legality of the president, without any authorization from Congress, killing people in the Caribbean with drones. And then there's the specific case of this one instance where apparently two people were killed after their ship was destroyed and they posed no actual threat. Let's talk about the first one first, because there are people who think this whole thing is unconstitutional and illegal. You originally, if I, if I read your oeuvre correctly, you originally thought that was illegal, but now you think it's justified.
Jed Rubenfeld
Well, I got to tell you, when I first started hearing about the, the drone bombing, speedboat attacks in the Caribbean, I thought this is crazy illegal. This is murder. The analogy I give is, you know, imagine, because you know, the claim all along was that these boats are carrying cartel drugs to the United States. And you know, what I said was, look, imagine a woman from Venezuela lands at Miami Airport and some drug sniffing dog reveals indicates that she's carrying drugs from Venezuela into the United States. And all officers take out their guns and shoot her on the spot. You can't do that. That's called murder. Yeah, drug Smuggling is a crime not normally viewed as an act of war. You cannot kill people just because you suspect they're criminals. I thought open and shut case, but yeah, Mark, the more I looked at, excuse me, the. Honestly, the more complicated it got. It's, it's not nearly that simple. And I can tell you exactly why. You want me to go into that a little bit.
Mark Halperin
Yeah, well, just, just what's, did you rely on precedent or just reasoning? Why did you turn from thinking this is akin to shooting a lady in, in the line at the Miami airport to, to saying that this is in fact.
Jed Rubenfeld
Okay, well, so here's what's going on. As you, I'm sure, know, President Trump has issued a notice, a letter of notification to Congress saying we are in a state of war, basically with Latin American drug cartels. Now, a lot of folks say that's ridiculous. You know, they're, they're importing drugs. That's not war. What are you talking about? But legally speaking, the question is, who gets to make that call? Who decides if the United States is in a state of armed conflict? Technically speaking, that's what it is, say to armed conflict with these drug cartels. Well, guess what? There's precedent going back a hundred years, over 100 years saying that from the Supreme Court saying, you know what, it's the president who makes that call. The president determines if the United States is, is being, is in a state of armed conflict or essentially state of war with, you know, even non state actors that are, are belligerent against us in some way. So the Supreme Court said that is not for the judiciary to review. If that's right, the president's made that determination and we are in a state of armed conflict and that's the end of it. The president makes that call. Now that what, what ha. What, what, what happens next is. Okay, what does that mean? What that means is the law of war applies. It doesn't mean the president can just shoot and kill anybody he wants. No, the law of war applies. Then the question is, in the law of war, can you attack a ship that's carrying cargo that's commercially valuable to the enemy? It's carrying enemy cargo that's commercially valuable, it's going to make money for it. Answer is yes, there's 100 years of precedent saying yes, you can attack vessels in the open seas that are carrying financially valuable cargo that belongs to your enemy.
Mark Halperin
So, okay, so, so let's say there were some marines on the U. S. Mexico border. Let's get away from the lady at the airport, and, and a truck comes driving towards them. And their surveillance says that truck's got 20 drug dealers on it, and it's filled with drugs, and they're driving towards the border. Can they, can they take out a missile and shoot that truck?
Jed Rubenfeld
Well, so first of all, you got to look at, you know, what has the President said with respect to this armed conflict? Let's, let's say the president determined. Let's say he said, we are in a state of war with Mexico. Let's just say that for one second.
Mark Halperin
Sorry, I got to be more specific. In my hypothetical. These are. These are the same nationality as the people on the boats. So they're not Mexico. They just happen to be in Mexico, just as the, the people the President's killed already happened to be in the water. If you put it on land, could you. Could you kill him?
Jed Rubenfeld
Okay, I'm going to tell you, I'm going to give an answer to this. You're not going to be crazy about. So the, the law of naval operations is not the same as the law of, you know, ground operations. So there is precedent, clear precedent, going back a long time, saying you can attack merchant vessels, you know, can you attack a merchant, a merchant truck on land, can you send a missile?
Mark Halperin
There's a different, Is a different. A different standard about a truck than a, Than a boat.
Jed Rubenfeld
Well, here's a difference. The boats on the high seas. So, so in your hypothetical, he's dropping. He's committing an act of war on Mexican soil. And what if.
Mark Halperin
What. What if it's a plane flying above the water? You shoot it down?
Jed Rubenfeld
Yeah, he might be able to.
Mark Halperin
Yeah, might be able to. All right, now, you know, they're, they're constitutional experts, members of Congress who disagree with you. Right. Who disagree on this question. We're not to. The second question yet about a shipwreck. How could it be that you are so certain you're right and other people are so certain they're right? Is it. Is it different interpretations of the law?
Jed Rubenfeld
Now, hang on. I, I got it. That's so funny, Mark, that you would say that, because in the piece I wrote in the Free Press, what I said is it's more complicated. There is a potentially valid legal basis, because I myself thought there wasn't. And everybody's saying it's outrageous. What I'm saying is there's more of a legal basis here than people were giving it credit for. I mean, ultimately, here's the thing. Here's the thing. Are we ever going to get a judicial Ruling on this. For over 100 years, presidents with increasing regularity have been bombing. Obama bombed countries, Bush bombed countries. You know, in fact, the bombing of Iran, the nuclear facilities, very similar in a certain sense. He drops a bomb on Iran. Where, you know, are we, Did Congress declare war on Iran? Everybody's talking about. Some people objected to that. But legally speaking, Presidents dropped bombs and have done so with impunity, gathering impunity for the last 50 years. And the courts have refused, you know, for better or worse, they've said, look, this is not our call to make. We will not resolve this. So that's where we.
Mark Halperin
Well, I think in your podcast, you leaned a little bit harder into not just saying it might be okay, but to be saying it's justified. You may not agree with it as a matter of policy, but it's justified. It's justifiable under the law. Right, that's, that's the position you have now on just this general thing of blowing up boats. And you're saying the courts can't intervene, but Congress could. And, and again, for many, Congress is supposed to declare war. And the president, like the, his, like his predecessors since the end of the Cold War, they all make a mockery of the notion that Congress declares war. Even, even in the case of George W. Bush, when he went to get a resolution after 9, 11, Congress watered it down. They didn't give him as much authority as he wanted. And then, paradoxically, every president since then has, has used the watered down authorization to do whatever they want under the banner of that one resolution. For the most part, presidents don't even ask Congress for a resolution. President Trump didn't go to Congress and say, I want us to declare war as a nation, as the Constitution says, on narco terrorists. He just is doing it. So can Congress step in? I know they won't, but could Congress step in and say, Mr. President, you can't do this?
Jed Rubenfeld
Yes, they sure can. And you know, know, a president like Donald Trump might say, no, they can't. But under existing law, if Congress passed a statute saying, you've got to stop these bombings, there would be very good, strong precedent that that statute trumps whatever the president, whatever power the president is exerting. But here's the thing, here's the crazy thing. You know, it's been over 200 years. We do not have clear judicial rulings, clear case law on the line that separates the president's power as commander in chief from Congress's power to declare war. And, you know, President George Washington thought, I can't do anything with the troops, anything substantial without congressional authorization. But in the 20th century, President started doing all kinds of stuff without authorization, just to give you a couple of examples. So Clinton bombed Kosovo, 1999, no congressional authorization. Obama bombed Libya, 2011, no congressional authorization. And. And they do it more and more. Many of us have been saying, what is happening here? We are now living in a world where the President can make war. The one thing we thought we knew was that the President did not have the unilateral power to make war. But so what the President's lawyers have been saying is, oh, we're not starting a war, we're just dropping some bombs.
Mark Halperin
Right?
Jed Rubenfeld
War. The President's lawyers, the Office of Legal Counsel, has said that's a sustained boots on the ground invasion. That, that's war. If we just drop some bombs, we can do that. And that is the existing state of the law right now in the United States.
Katie Miller
Right.
Mark Halperin
And presidents of both parties for about 50 years have had that attitude. And Congress has been too feckless to step in. All right, I want to ask you about two or three legal aspects of this specific case. It's been much in the news where two people were apparently killed by the Pentagon by drones in a second tap. A second strike after the first strike largely destroyed the craft and rendered them no threat whatsoever. Now, first question is this. No one in the Pentagon in this day and age would do anything like that without a legal opinion. Right. Some lawyer somewhere in the Pentagon or the Justice Department or the, or the nsc, some lawyer, or probably multiple lawyers said, yeah, this is legally justified. Doesn't that end it? If a lawyer working for the government says this is legal, doesn't that on some level make it a de facto legal operation? And we shouldn't be looking at the Admiral, who, who's who the White House says made the decision, or, or the Secretary of Defense. Shouldn't it all be on the lawyer?
Jed Rubenfeld
Okay, so you're. We're jumping over the question for the moment of whether it's actually legal. We're just asking if the OLC issued an opinion.
Mark Halperin
Well, I'm approaching that key question from a, from a very specific point of view, which is, isn't there a case to be made that if the lawyer, whose job it is to say this is legal or not, it's consistent with international law and American law. If the lawyer says it is, is. Doesn't that for some people settle it?
Jed Rubenfeld
Yeah, folks are making this exact argument. Mark, you're exactly right. So, in fact, there's an olc, that's Office of Legal Counsel. That's a White House office opinion from, from some years ago saying, yeah, if we write an opinion saying that something's legal, you can't go after any of the officers for doing it. Well, I'll tell you, my opinion is that that opinion is legally of no consequence. No, the Office of Legal Counsel cannot legalize war crimes. They can try, but they can't do it. Now, what the President has, as you know, is the pardoning power. So the President can pardon these people, but the Office of Legal Counsel writes some opinion. They cannot legalize through that opinion an atrocity, a war crime, whatever you're going to call it. So folks are making that argument, and I don't believe it. Especially nowadays, Mark, as I'm sure you understand, when the Office of Legal Counsel is getting merged with, you know, the White House, like it's not serving an independent, as much of an independent legal watchdog role as arguably it did in the past.
Mark Halperin
Right. But Jed, if I'm Admiral Bradley or I'm Pete Hegseth, I'm not saying, well, the President can pardon me if I ever get indicted by the Trump Justice Department, unlikely to happen. What I'm saying is the lawyer said this was okay. So to the extent anybody has a problem with the international or American legality of this, take it up with the lawyer.
Jed Rubenfeld
Well, first of all, Mark, I, I don't know if you want, if we're going totally hypothetical here. I, I doubt very much that the Office of Legal Counsel opinion, which is classified, so I haven't read it, I don't have access to it. I doubt very much that it says, and you can deliberately kill any survivors who are floating in the water clinging to the wreckage. I strongly doubt it says that. I doubt very much that there's a legal opinion because there is a hundred years more than that of president saying that's the one thing you can't do. You shoot a boat, okay? Then there's survivors floating in the water. You kill them. That's murder. So I don't believe the opinion says.
Mark Halperin
Okay, so let's drill down on that specific on, on, on stipulating we have incomplete facts. Isn't it possible that the second tap, the second strike, was meant to eliminate the threat of anyone seizing the cargo? Or that these guys would somehow revive themselves and pose some harm to the United States? In other words, if the intent was not to kill these two shipwrecked people, but simply to finish the mission, and the mission was render this craft and its cargo, no threat to the United States, wouldn't that be justified?
Jed Rubenfeld
You are asking exactly the right question. That's the question everybody's wondering about right now. We don't know the exact facts. You got to remember the Washington Post that when it breaks a story, what the Post alleges is that Mitchell deliberately ordered an attack to kill the survivors, allegedly in compliance with an order had been given to him by Hegseth, saying, kill everybody on board. That's what the Post reported. If you accept that story, if it's true, and we don't know if it is, but if you accept that story that what happened was Mitchell saw the two survivors clinging to the wreckage, and he had been told by Hegseth, you got to kill everybody on board. So he specifically orders a strike to kill those guys. That's a war crime. That's murder. Now, what. What I think might have happened and what now people in the administration are saying happened is what you're saying. No, no, no. What Mitchell did was he ordered a second strike to take out the boat. The boat's still carrying the cargo. He took out the boat. It was a collateral damage consequence that the people floating in the water killed. That would be a. Legally speaking, a completely different story. And that would, you know, involve, you know, the issue of proportionality and so forth. You remember Obama when he was president, he dropped all these drone bombs on what the United States had determined to be enemy combatants, terrorists. And he killed lots of people standing around. I mean, and, you know, including.
Mark Halperin
Including an American.
Jed Rubenfeld
Including, man, we apologize. You know, sorry. But we were bombing legitimate targets. And, you know, yeah, it killed some people, and a lot of folks were upset about that. But that happens in war. If you're attacking a legitimate target. And, you know, by. It just. It so happens that it kills some people. You can make legal arguments for that. Happens all the time in war. So the big question is whether what the Post reported is correct or whether, you know, a different set of facts like you're suggesting is correct.
Mark Halperin
Right. So, okay, so for a normal person, not a lawyer, but a normal person. Just kidding. You got on the one hand, we got to keep drugs out of the United States. It's gone on too long, and we've already gotten a little bit pregnant because the president's saying, I can, without getting congressional authorization, I can go kill people on the seas in the Caribbean. Right. That's. No one's. Some people are unhappy about that.
Jed Rubenfeld
But.
Mark Halperin
But there's no political move by Congress to stop that at Least there hasn't been. There's been some concerns, but. But, but, but the President's getting away with it and doing it. So then they say, well, all you're saying is he could have killed those two guys the first time. The, the first drone attack happened to not kill them, so now he's killing them the second time. Doesn't that seem like a legal nicety? What's the, what's the harm to the United States to threaten, finish the job, which could have happened in the first strike, except those guys momentarily lucked out. Where's the, where's the principle? What's the principle that's being violated that does harm to America?
Jed Rubenfeld
I know it's, you know, the question you're asking is fascinating. It's like, it's almost a question about the, what we call the laws of war. It's like, what do you. Give me a break? The laws of war. It's all legal technicalities.
Mark Halperin
It's all bs but, and that's just starting to interrupt. But that's what Pete Hegseth in the past has said. He said, forget all this legal nicety stuff. We're in a war.
Jed Rubenfeld
We're in a war.
Mark Halperin
We're going to win the war. We're going to use as his favorite word lethality. So again, I just say, you, you said that this was murder under the facts as we understand them. When you, when you wrote this week, if, if in fact they, they killed these two people purposely, even though they were shipwrecked, that does violate international law. But what some normal Americans might say is, why is that a principle? Why is it a principle? These guys, we, the President decided they were drug runners, they tried to kill them, they failed, and then they finished the job. What's the harm? The positive is two guys who the President has deemed drug runners are killed. What's the harm to America for violating that international law that you can't kill people who are shipwrecked like that?
Jed Rubenfeld
Well, there's two answers to that question. Here they are.
Mark Halperin
First.
Jed Rubenfeld
First. You know, since Abraham Lincoln and, and, and throughout the 20th century, there has been. And, and Lincoln, believe it or not, was one of the first and leading figures in this to lay down some laws of war. And they include, for example, you take some prisoners, you can't then just take a gun and blow their heads off. And why is that? Well, first, it's a matter of principle. You just can't do it, even if you're in wartime. You, you got your prisoners. You, you can't Shoot everybody. There are lines you can't cross. And that's been laws of war for long. And guess what? Shooting prisoners can be militarily very useful. Those guys can escape. Yeah, those guys can. I mean, stuff can happen for a. You know, Second World War. German Uboat commanders, they were hitting Allied, you know, submarines, hidden Allied merchant ships. Merchant ships. Then they would come up, they see some survivors floating in the water, they machine gun them and kill them. We took those Uboat commanders, one of them, especially this guy, H. Tried at Nuremberg, executed for that act. Executed because, you know, the idea was, hey, there are lines you can't cross. And shooting the survivors from the shipwreck.
Mark Halperin
Before you move.
Jed Rubenfeld
Now, let me.
Mark Halperin
Before you move to the second one.
Jed Rubenfeld
No, but before US Interests. I'm just going to finish it. So one is like a matter of principle, lines you can't cross. The other one is the laws of war are reciprocal. Like, that's the idea is, hey, the next time we're in a war with somebody and they start shooting our prisoners and they just take the gun, like, you know, God knows we're in some war with Russia, they capture some prisoners and they just shoot them in the head. If we kill other people's prisoners, they're going to kill ours. Now, I know folks are going to say, oh, well, the terrorists don't care, and the terrorists are never going to abide by these laws. And, you know, maybe, but that's part of the idea is. Is the hope that your prisoners won't be treated to that same level of atrocity, too.
Mark Halperin
And this may sound like as naive as a freshman at Yale who somehow snuck into auditing your law class.
Jed Rubenfeld
Doubt it.
Mark Halperin
Doubt it. Do you ever let undergraduates into your law classes?
Jed Rubenfeld
Yeah, every now and then.
Mark Halperin
Okay, so. So what? What? I'd say the first point is, this is a war, man. And you say it violates a principle. Well, that's one principle. Don't shoot prisoners. Right. But another principle is, if you're at a war, win the war. The President's decided we're at war with these narco terrorists and. And he's killing them. Like, he's doing it as deterrence. He's doing it for interdiction. So why not kill these other two guys? This is a war. And you say, well, there's a principle, but what's the principle based on, do you think?
Jed Rubenfeld
I mean, I hate to drag you into this. You don't want to talk about it, Brian, but do you think October 7th was wrong? Those people think they're in a war with Israel. So are they allowed to drop in and kill everybody they see, Civilians, women, children? Are they about, Are they allowed to bayonet kids because they think that. Because they say we're in a war, we can do anything we want because it's a war and it's to help us win? Answer. For hundreds of years, no, there's stuff you can't do.
Mark Halperin
Yeah.
Jed Rubenfeld
And, you know, shooting folks floating in the water is supposed to be one of them. Legally speaking. That, that principle has been around for 200 years.
Mark Halperin
Yeah. Just to be clear, I'm not taking a position on it. I agree with you, frankly. But. But I just know there are tens of millions of Americans who look at this and say, like, these are narco terrorists. The President's decided. The Commander in Chief's decided we're at war with narco terrorists. We're not going to, we're not going to have legal niceties. We're not going to play by these, these rules. And I know that that's what the President's supporters believe in Congress also, like, this is no joke. And, and I guess for me, their strongest argument is once you say he can go without any due process, without any declaration of war by Congress, he can go murder people in the Caribbean indiscriminately. Really, that now we're just arguing about, like, the, on the margins of what's, what's. Okay. Because he has no idea who's on those boats. You know, I mean, maybe if intelligence, they have some idea, but there's certainly no due process and there's certainly no declaration of war. And, and they're not warships. They're. They're, they're merchant vessels selling illegal products that are dangerous. So it's like they can defend themselves anyway. Right? It's not, it's not. They, they don't have, they don't have machine guns on those, on those vessels.
Jed Rubenfeld
Not that we know.
Mark Halperin
Yeah.
Jed Rubenfeld
I mean, look, I'm sure, Mark, you agree, and I'm sure even the folks who are taking the position that you're talking about would agree. The President cannot, like, just drop bombs on schools and hospitals in Venezuela. Now, why is that? Because there are supposed to be rules, principles, lines that you draw. Even when you're at war, there's some stuff you can't do. And if you're saying, hey, look, folks out there saying, you know, what's, what's the deal with the law? Forget the law. You know, these are, these are, these are bad people. Well, you know, there's a difference between saying, these are bad people and let's forget the law. If you say let's forget the law, then you're saying, okay, yeah, he can go bomb anybody he wants in, in Venezuela. And Mark, I'm sure that you and I are not going to go anywhere near that far. And I doubt many, you know, other folks taking your position would. Would go that far. And what they have to say at a certain point is, yeah, that's, that's wrong. That, that, that move is wrong. And so the law has to draw lines. And, you know, some people are going to agree and disagree with where the lines are drawn. But for hundreds of years, the line has been you can't deliberately shoot folks floating in the water.
Mark Halperin
Right.
I guess. I guess one distinction in the hypothetical you raised is civilians, right? These aren't kids in a school or people in a hospital or in an office building, but they're not military. But the president's basically deemed them the equivalent of military under the law. If you were a lawyer, if you were a lawyer in the government and you were asked to approve this specific operation, the second tap in this case, what would you have said if you were asked to approve it?
Jed Rubenfeld
I would not say what make the argument you're making now that it's fine to kill shipwrecked people who are floating in the water. That's going to lose. That's. That's against the law. That's murder. What I would say is we weren't doing that. We were taking the boat out. We've all agreed that we're allowed that the boat's a legitimate target, and we had to finish the job, take that boat out and sink all the fentanyl or whatever supposedly was on that boat. We're allowed to take a second shot at that boat. It's not a double tap at the guys. It's a double tap. It's not even a double tap, second strike at the boat.
Mark Halperin
So just to clarify, if you were in, like, the Situation Room and you were the lawyer on call and they said, there are two guys there, they're defenseless, but the ship's still there, and the mission's to get rid of that ship and the cargo. We're going to take out the ship, those guys are going to die. But our purpose is to take that take out the ship and the cargo.
Jed Rubenfeld
You.
Mark Halperin
To prove that.
Jed Rubenfeld
That's essentially the decision that has already been made by those lawyers when they first say you can take out that ship with the 11 people on it. So I would ask very. If I'm a lawyer, I would ask very specifically, you're sure that the boat is still there and there's a reasonable chance it's got the cargo on it. And they say, yeah, yeah, the boat's still there. We can see it. The boat's there. Then I. Then on the same grounds that I authorized that I said it was legal to strike them in the first place, I would say, yeah, you can take a shot at that boat. That's right.
Mark Halperin
Yeah. Because those guys are no more defenseless than the original guys because they're just. They're just driving a boat.
Jed Rubenfeld
All right.
Mark Halperin
Complicated stuff made simple with an unofficial Ivy League degree. Do I get like a Ivy League certificate or something from this?
Jed Rubenfeld
You just got an horse in my class. Honors and honors.
Mark Halperin
All right, Jed, tell everybody about Straight down the Middle. How often does that appear? Where can they listen to it and watch it?
Jed Rubenfeld
You can watch that on YouTube. Straight down the middle is the podcast where, look, I call them like I see him. You know, I. I got so much hate mail when I said that maybe the president does have a legal basis after all for taking out these votes. And now I'm getting hate mail on the other side for saying if the Post story is true. And let me emphasize once again, we don't know if it's true. Um, yep, I said it was murder. I get. But in what I do is I try to call them like I see him. And that's what I do on my podcast. Straight down the Middle. Thank you, Mark.
Mark Halperin
And. And how often does it come out?
Jed Rubenfeld
I. I try to do it whenever there's something big in the news. So it's not regular, but not regular.
Mark Halperin
One on this, but if you subscribe, you get it. And you can always sit next to me in the El Faculty club. I'd be proud to. Proud to join you for egg salad sandwich or something. Professor, thank you very much. Again, it's Straight down the Middle podcast. You can read Jed's writing also on the Free Press. Grateful to you.
Jed Rubenfeld
Thank you, Mark.
Mark Halperin
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Mark Halperin
All right, next up and joining me now is the Katie Miller of the Katie Miller Podcast. She's gotten to the podcast business after a long and illustrious career doing other stuff. Katie, welcome in. Thank you for joining.
Katie Miller
Thanks, Mark. Excited to be here.
Mark Halperin
Happy holidays. What's it like being in the podcast business? I've heard so much about it.
Katie Miller
I was just saying this morning it's so much harder to start your own thing than you think it is. You hope that people tune in and care what you have to say. And some of my episodes do much better than others. And to me, it's an experience in learning what other people want to consume, which is great. But the reason I started this is because there isn't a place out there for women like myself who share my morals and values, who think husbands and kids make their lives richer, fuller, better, has made my career significantly better. That to have a normal non political conversation about life and culture and what it means to be raising kids in today's economy, in today's world. And there wasn't something out there. So I started it myself. And I believe it's the only female led thing which we are talking with political guests, entertainment guests, news guests about their life and how they live it. Because I think at the end of the day everyone says we all have the same 24 hours, but it's always sincerity that we all put our kids to. You know, we all go through bath time and bedtime and dinner with little kids and how does that work? And I think it looks the same across a lot of households.
Mark Halperin
So as Katie said, she's got political guests and business leaders and people from entertainment writers, etc. Recently, Mike Johnson and his spouse were on together. And just tell me how you, I've heard you just now and before talk about why it's different, but talk about how you approach it. What's your goal for every episode?
Katie Miller
So how this episode came to be is I was actually with the speaker and his wife Kelly on the plane to Arizona for Charlie Kirk's memorial. And I was explaining the same thing I just explained to you, which is if other people knew what, you know, how Stephen and I raised our kids and parented and dealt with, you know, how you have a working parent and two working parents and three very young kids. Our kids are now five, three, two. And it is across so similar. And so I was talking with Kelly Johnson about this. She looks at Mike and ribs him and goes, see, it's the same. And that was the Point of this episode was having the conversation about how they've chosen to raise their children, how they raise successful children, and how they deal with the stresses and pressures of being the speaker while still being two people who want to go out and have a date night and two people who want to take a stroll and walk off their dinner. And unfortunately, in his line of work, you really can't do that anymore without four cars trailing you and some police sirens.
Mark Halperin
Yeah. So I've known people in both parties for my whole career who have stepped into the spotlight for public service and have had their lives turned upside down. Huge legal bills, now attacks on social media, but even. Even at the start of my career, attacks in other places and death threats and disruption and challenges to spend time with family, you'd be in that category. You've associated yourself with some very powerful people you've worked with who have been controversial, including your husband, but others as well. But it's true of Democrats. And I just have such sympathy for what you have to deal with and admiration for those of you strong enough to handle it. So talk about where the strength you have comes from, because you are dealing daily with societies and the left's desire to disrupt your life and to make it harder for you to raise your kids and harder for you to enjoy yourself. So where does the strength you display, which I find just extraordinary and admirable, where does that come from?
Katie Miller
It's funny you say that, because there are some days, and I've always said the reason I'm doing my podcast is to be ruthlessly honest with everybody. And so when we. This is now reported, so I don't feel like I am doxxing myself, but we had to move out of our house for security reasons. The house I built for my children, that my realtor was like, oh, this is a perfect house for young kids. And I'm like, I know. I built it for my children. And we moved into a military installation for our kids, security. My husband's security. And to ensure that my husband felt safe and my kids felt safe pushing a stroller. Because as any parent of a young child knows, it's wrangling to get into car seats, it's wrangling to get into strollers. You don't move quickly, you don't have fast movements. And so for our kids, security, and for my husband's, we moved from our home into a military base. And that is a very sad state of affairs when you know the people protecting you feel when you're safer behind a military installation, which isn't common or has ever been done before, and I think in U.S. history. And I'm so grateful to our service members who have taken us in and treated my family so welcoming. I don't know if anyone knows this, but they play. I mean, I'm sure military people know this, but they play revelry at 8am every day, and the kids run outside and put their hands over their home hearts. And it's such a great learning experience for what it all means and why we're all going through this. But I'd be lying if I said there weren't days when it's so hard to leave your house and we're living on top of each other and you got to go pick up winter coats and there are things with little kids that it just drives you nuts that all of your stuff isn't in one place and we don't feel settled. Right. But the only thing people took from us isn't the love for my family. It is my time. And that is something that's irreplaceable. And there are days when you have a rough day, but there are days when you say, this is worth it, because every day, my husband and I are making more of a difference than those people who are protesting outside my home hope to achieve in their lifetime. It's always the gender studies professor or the people who are trans who are the ones trying to make our lives difficult. Why is that? It's because they know they're losing and we're winning every day. If you go to bed knowing that you've done the best you can to forever shape our country in a productive way, then you've won.
Mark Halperin
Yeah. So I appreciate all that, and I appreciate you bringing up the house move, which I read about. I wasn't going to raise, but. But it broke my heart when I read it, because I've seen pictures of your home, and I know people who visit your home, and I know it to be a lovely home. And I'm a dad. And I just thought, man, if I had to move my son because people were threatening our lives, that's heartbreaking. But I go back to my original question. As a good podcast host, I have to remember what I asked you, which is, where does this come from? Tell me about, like, the teenage Katie. Like, how did you learn to be so tough? Because this is an extraordinary situation you find yourself in. Again, you've worked at the top levels of government and business, but now this is the most serious thing you faced. And yet I watch you do it. You do it with grace and dignity and calm for yourself and your husband and your kids. Where does that come from? Is it experiences you had earlier in life? How do you do that?
Katie Miller
I really do. I will say this, and I said this at the top of the show, is that, you know, husband, kids, make your lives better, richer, fuller, stronger, better. And my strength actually comes from Stephen, is there is only one person who can survive this long in the Trump administration and let every single infighting and snipping at his heels just roll off his back. And the lesson he's taught me is don't, don't pay it any noise, don't pay attention, keep moving forward. And it really does come from my husband, which is just keep moving, keep going forward and don't care. Because the end of the day, you know, when we sit down for dinner as a family, because we do every night at 5:30, Steven is home to have dinner with our three kids. Is that, that's all that matters. It is not what they print in the New York Times or the Washington Post. It is not what they're saying on X or Blue sky or any of the liberal things out there. It is what matters is our family. And I think that's a very important lesson for everyone out there, is that the Internet is not real and the legacy media lies.
Mark Halperin
All right, again, super interested in that answer, but I'm going to press you one more time. Is there an experience of Young Katie if I'm making the biopic Young Katie?
Katie Miller
No.
Mark Halperin
Like, is there something like, did someone ever try to, you know, steal your roller skates or. No, no, no, no. So what was it? Let me ask you this. Before you married your husband, what was the toughest moment of trial by fire that you ever faced?
Katie Miller
I just had two loving parents who always encouraged me to do whatever I wanted to do. My mom was like, had. My mom always had my back, even if I got trouble in school. My mom was like, she is 100% correct, lady. I think you're incorrect as the teacher. And there was many times when I believe I was definitely incorrect with various teachers. And my mom took my back and had my side. And I just absolutely remember that being a driving force was if you keep punching forward and not to say you never apologize, of course you apologize when you're wrong and if you hurt someone's feelings. But if you always are determined and bound, what you're going to do, you will make a difference and make a change. And so, I mean, in high school, for example, I think I graduated A couple years early. And I did mostly online school because I thought I was smarter than the teachers. And that's just kind of who I am, is. I'm hard charging.
Mark Halperin
All right, you like honest conversations, so let's have one about Stephen. I met Stephen in the 2016 campaign. He was the unknown aide to an unknown senator from Alabama who'd endorsed Donald Trump. And I was covering the campaign, and there was almost nobody on the road that day. And I instantly understood that this guy was unusual, special, genius, but also driven. And you're one of the top PR communication specialists, literally, in the United States of America. And you look at the coverage of your husband, not just in the conservative, in the liberal press, but overall, and you see a massive gap between what he's really like and how he's covered. I know you do. Massive gap. Maybe the biggest gap you've ever seen anywhere.
And then.
And then I think about, whenever I see Stephen on tv, he's usually kind of intense. Is that a good word for how he is on tv? It's a little intense. And I just think. I just think here's a guy who. Whose life would be better if there were a narrower gap between how people see him and what he's really like. And here he is. I have unlimited access to one of America's top PR professionals who understands how to shape things. So why aren't we calming Stephen down on tv? Why aren't we getting people to see what he's really like? It can't be impossible. Why is that? Why. Why are we not reshaping the public image of Stephen Miller?
Katie Miller
Because, as always, the wife is more radical than the husband. And I'm the one who says you should go harder and go stronger and take them down more. And why aren't you fighting back harder? And he's like, I don't know how I could be more aggressive than this. And I think you know this well, but he is a different person at home and off camera than he is on tv. I don't want to say it's an act, but he so passionately believes in what he says. He knows more than I think anybody else in the entire world, except President Trump, about the issues facing our country and why it's important to, for example, stop Third World migration into the United States and how that affects public safety. Stephen was fighting for this back in 2019 as it resulted in the slowing of the Afghan civ visas, for example. He can always see around the corner. But I will say that watching him on TV is one of my great joys as his wife. Do I catch everything? Absolutely not. But there are times at night now when he turns to me and he's like, you gotta slow it with your ex post. They're too radical. And when one spouse says that to the other, and most people would consider him the more radical one, it means we're well matched. But I will say this is again, a few minutes ago I said that Steven, you know, very much lets things roll off his back and doesn't concern him. So I really don't read and neither does he. The coverage about him, it doesn't matter to us and it doesn't matter to Stephen because he's been doing this now for how many years and it's never affected his career trajectory.
Mark Halperin
I appreciate the kind of clarity and strength that comes from saying we're just not going to pay attention to it. I totally appreciate that and I see the logic of it, but I'm just maybe playing devil's advocate a bit. If you assume that. That Stephen is a funny, charming, sincere guy, which you and I both know is true.
Katie Miller
Yes.
Mark Halperin
And you assume that his reputation is just. It's ridiculous of what people say about him. Again, devil's advocate, couldn't he be more effective for the whole country in the immense power he has? And by the way, I won't make you confirm this, but he actually has substantially more power than his critics realize. He and J.D. vance are running the whole place with the President. Wouldn't he be more effective if people saw what he was really like? And so not to be consumed by what the New York Times says, but just to say people should see the real person because that just gives him more influence and more power.
Is that right?
Katie Miller
I saw a study last night from NBC that says, you know, the Gen Zs trust news media less than ever. They have a more pessimistic view of news media now than ever. And that's because they know it's not being honest and truthful. Why is it every single New York Times story about Stephen has one of him glowering in the corner with it, dark and dreary instead of, you know, sunny and cheerful? The guy owns more. My husband owns more suits in bright colors than probably anyone in Washington D.C. politics, but yet those are never the photos they choose. They choose to demonize him, call him white nationalists, call him a Nazi, because they know that that's how you can incite violence against somebody and excuse it when it happens. Look at what happened to Charlie Kirk, for example. But, you know, I would say that to you, Mark, is that recently Robert De Niro and others have chosen to call Stephen, you know, terrible names that I believe are past the bar of what you would consider for a lawsuit, and we've consulted multiple attorneys to do so. But when you go ahead and go down and say, okay, we're going to sue, which I definitely have lawsuits drafted in my inbox, is then you lose time to the enemy. And that is time detracted, fighting for the country. And Steven and I have this conversation often, and when I get upset and I'm like, let's go ahead and actually file the lawsuit this time, he said no, because that's not where our time should be going. And that's the ultimate thing, is you only have the 24 hours in a day.
Mark Halperin
Yeah. I'm going to stay with this for one more question because it just breaks my heart because. Because I know. I just. I find it also ridiculous, this gap. So you're not going to win over De Niro, and you're not going to win over people on the left who's. Whose livelihood is literally based on demonizing Stephen. But I wonder if you and I, let's do a focus group in Green Bay and let's show people video of Stephen and video Stephen's detractors. And my guess is that they wouldn't necessarily have as high an opinion of him as they might just because of the fog machine around him. And maybe because some people might find his appearances a little more intense than they need to be. Some people might. I don't know. Matter of taste. But wouldn't it be better for him, the country, the president, your kids, if those persuadable people saw him in a different light, wouldn't that be better? Maybe I'm wrong. Maybe it couldn't happen, or it wouldn't be worth it. I don't know.
Katie Miller
I don't think it much matters. I mean, Stephen has built such a fantastic career from being himself, whether that's on TV or whether that's in our private life, that he's managed to make a career for him. Start America First Legal, when nobody wanted to hire US after January 20, 2021. I don't know if anyone clearly remembers that time. I do. Of how many phone calls we both made to people who didn't return our phone call, who didn't want to be our friends, who didn't want to go out to dinner with us. And then what happens? President Trump won the nomination again, and all those people came running back. And yet Stephen still had an amazing career, being himself despite all of that. And sure, do we care what people in the heartland think? Not really. I mean, at the end of the day, he's not running for Congress. He's not running for president. He's doing what President Trump was elected to do, which was implement his agenda faithfully and lawfully. And that's what Stephen's done. And does it hurt my heart to see people not see my husband the way I see him? Absolutely. But I know if I showed my video of my wedding vows, Mark, to your point, it would win over a lot of people. But those are private memories and images that maybe one day I'd release. But anyone who was at my wedding, I was just watching this back last night, would know that Stephen is the most heartfelt, genuine person. I mean, when you have a speechwriter write his wedding vows, kind of shuts down the whole room.
Mark Halperin
Yeah. Also, the 40th birthday party I hear was pretty much of a love fest, too. Well done. You on planning that. That was not easy. Okay, let's talk about you. We've wanted you on for a while and we're grateful to you for making time. But just by luck or otherwise, you've been in the news this week. First of all, we're going to show you a couple clips of things. First is this is you on CNN with Abby Phillip. Now, what made you go on Abby Phillip Show?
Katie Miller
Her team has called me for a couple months now asking me to come on. And as you well know, with little kids, you don't like to travel all that often. And so she tapes in New York and they said, oh, we're doing a pre tape in D.C. i said let's do it, let's see what happens. And of course, I just talked about those lawsuits with you that I have drafted. And one of them actually is for Abby Philipp and Jennifer Welsh I think is her name for calling my husband a white nationalist. So I've had that information. Would I have brought it up when we can watch this clip outside of what Abby Phillip decided to do, which is have me answer on behalf of the entire Republican Party and the vice president and the president for speech that they weren't there for. But you know, hypocrisy is a fun thing, right?
Mark Halperin
All right, well, let's, let's, you know, John Madness, legendary football coach Madden, tell us straight away, I want you to kind of chalk talk this on the front end and then the back end. So you had a, you know, I'll call it a confrontation with television host Abby Phillip, did you go in assuming you were gonna have a confrontation or did it happen spontaneously?
Katie Miller
Happened spontaneously.
Mark Halperin
Okay, let's watch. This is recently on CNN in primetime podcast podcast legend Katie Miller. The Katie Miller podcast versus CNN's Abby Phillip, a former Washington Post reporter. Roll that tape, please.
Katie Miller
You have Jennifer Welch on your show very often, and you've never pushed back, as she called my health. My. My husband a white nationalist.
Abby Phillip
Hold on.
Katie Miller
That is no different than Nick Fuentes going on Tucker Carlson. It's not and you should admit it.
Abby Phillip
Hold on. Wait. Hold on. How is it anything similar? It's not remotely similar at all. Nick Fuentes sits around and says that he likes Hitler. How is that?
Katie Miller
What do you have to do with it?
Mark Halperin
What does she have to do with it? Hold on. She has nothing, but.
Indeed Announcer
Hold on.
Abby Phillip
Literally nothing. Scott. Katie is the person who just said to me that it is comparable to say that Nick Fuentes, who is literally a neo Nazi, is the same as somebody, a liberal who has an opinion, who is not a neo Nazi, a hateful opinion.
Mark Halperin
How do you want.
Abby Phillip
Excuse me, let's go back to him one more time.
Katie Miller
Nick Fuentes can espouse an opinion on Tucker Carlson's show. It is not. And he didn't push back the same way you didn't push back when someone called someone in my family.
Abby Phillip
Hold on a second.
Katie Miller
It's not.
Abby Phillip
Hold on a second.
Katie Miller
If.
Abby Phillip
If someone comes on this show and says, I love Hitler and I admire what he did, they would never. First of all, I would never invite them on the show and they would never be invited back. So those two things are the same thing.
Mark Halperin
All right, so, Katie, I mean, almost too obvious to say, but of course, you are 100% right. Of course, it's exactly the same. A host sits by while someone says something beyond the pale and doesn't say anything about it. It's the same. Does her. Her attempt to make them different. Whatever. So what happened immediately after that? Like when you went to break, did you have. Did you have words with her? Have you talked to her since?
Katie Miller
No, we haven't chatted since. It was incredibly awkward. I was actually just talking with somebody else this morning about this. But no, afterwards, she didn't speak to me. We had a polite conversation off air. Just thank you for coming. But it was a noticeable change in demeanor around the table. Once you do that, I could tell that I have upset her. I could tell that she didn't like being called out on her own program, especially something in which I equated her to a Nick Fuentes and Tucker Carlson and who people she thinks are the end of the world as you know it. Right. Because at the end of the day, she sat there and nodded along as Jennifer Welch said that Stephen was a Nazi Jew and a white nationalist. She had run her program four times.
Mark Halperin
Yeah.
Katie Miller
It's not a one time occurrence.
Mark Halperin
Right.
So Jennifer Welch, I concede I'm vaguely familiar with her just because I'm in the podcast business. So I study up. That's who you were talking about with Abby Phillip. And here is. I don't know if you've seen this. This is Jennifer Welch on her show yesterday. Have you seen this?
Katie Miller
Yes.
Mark Halperin
You've already seen it. All right, well, we'll show some of it at least. Everybody, this is Jennifer Welch responding to Katie Miller responding to Abby Phillip responding to Jennifer Welch or not responding. Roll S2, please.
Jennifer Welch
If you think that my opinion that you and your husband are Nazi white nationalists is hateful, good, Good. Because I will stand with every American, immigrants, people with brown and black skin, and lgbtq, and I will stand with them because I believe in universal human rights. I do not believe in any way, shape or form in the cruelty that your husband is launching. He literally has masked agents going out into the streets and abducting people, sending them to El Salvador and then oops are bad, then sending them back. It's will always be called out. I will never stop calling out the injustice and the cruelty and the Nazi style ideals that your husband has. I will never stop.
Mark Halperin
That's enough. That's enough of that. Do you ever, you ever met this Jennifer Welch figure?
Jed Rubenfeld
No.
Katie Miller
And all I've seen of her is what's on the Internet. And I'm trying not to platform her more than she wants to be platformed because at the end of the day, I mean, she is one of these people who the president's policies don't affect at all. Right. It's all this virtue signaling, especially among affluent white female liberals who want to say that we are destroying their way of life, when you and I both know she's probably someone who employs illegal labor or an immigrant just to show off to her Upper east side friends that she does. So it is one of these things where it is just so hypocritical, her personal viewpoints based on how she interacts with the rest of society.
Mark Halperin
If somebody called someone I loved a Nazi or a sociopath or all these things she says, I'd be furious. And I know you're, you're, you're, you're energized about it. I mean, it's obvious you are. Do you think she means it, or you think it's all just an act?
Katie Miller
No, I think she's delusional enough to believe what she says. I think she is delusional enough that if someone ever were to physically harm my husband, she would say it wasn't me. I was just, you know, I was just calling it like I see it. Right. But that's the problem is when Gavin Newsom calls Stephen a fascist or, you know, you see on the news, on Abby Phillips show regularly, right. That people call other people in the Republican Party a Nazi or a white nationalist, it's easily brushed off because what they're doing when they're saying that is they're saying it's okay to incite violence and. And harm against other people just because of their viewpoints, which is what happened in 2015 when President Trump ran. Politics in our country devolved into this tribalistic state in which it's okay to call other people names, and then it's. It's okay to shoot them in Butler, Pennsylvania, it's okay to shoot them in the street, whether that be, you know, Luigi and. And the health care CEO, whether that be what happened to Charlie Kirk, and easily excuse it because we just move on. And it's, you know, political violence in our country is only going to get worse because of people like her.
Mark Halperin
If. If somebody called you and said, hey, I'm Jennifer Welch's husband or lawyer or agent, and she's thought about. She feels horrible, what she said about you and your husband. She'd like to have dinner with you. Would you go to that dinner and what would you like the conversation to be?
Katie Miller
I don't think that conversation would ever happen. I don't think anyone's reaching out. If she feels so passionately that she wants to go on TV and make a name for herself off of my husband's popularity and his success, then I wish her all the best.
Mark Halperin
But I'm saying if she wants to climb down off of this and say it's too much, I've been too negative. I want to. I want to make amends. Would you be open to that? I'm asking about her. She's an extreme example. But do you have any aspiration to lower the temperature or.
Katie Miller
Absolutely. I mean, absolutely. I'd have. I have many Democrat friends I'm happy to go to dinner with. But, you know, from my own lived experiences, as everyone's saying, let's tone down the rhetoric. Let's have These peaceful conversations. You know, the morning after Charlie was murdered, which was September 10th, Charlie was murdered September 11th, at 9:30 in the morning, I had people passing out flyers in my neighborhood at my children's park saying that my husband was wanted for murder, wanted for war crimes. And here's my home address, and here's where pictures of my children are. So if people really want to talk about lowering the temperature, it works on both sides. And unfortunately, literally just mere hours after Charlie was murdered in cold blood, this is what's going on at my house where my three children are. So I have a hard time believing it goes both ways.
Mark Halperin
Yeah, Katie, I'll say again, it just breaks my heart that you have to deal with this. And I'd say that even if you didn't have kids, but particularly because you have kids and little kids, and it's just unfathomable. Does this end when President Trump leaves office, or is this the Miller's life forever?
Katie Miller
I think this is the Miller's life forever. But I am joyful and excited to be able to change the country for the positive and into the way I know makes it best and safer and more secure for my children, for your children, and for our grandchildren for years to come. And so if that is what my life is, that's absolutely fine. I know that you started the show saying, you know, people's lives, Democrat, Republican, changed dramatically, and it does, but it's okay because there are so many benefits, like taking my children on Air Force One and then getting to see President Trump and the greatness of our country each and every day.
Mark Halperin
What was your life like when your former colleague, client, Elon Musk and the President were having a bit of a tough period? They seem to be doing better now. But what was your life like when they were kind of at odds again?
Katie Miller
You know, it's different when you are seeing it from a different side. And I only know Elon to be a tremendous warrior for our country. Someone who is warm, thoughtful, a great boss, who truly cares about his employees. If you've. If you've ever been to Starbase Texas, you would know that that place is the most inspirational place on the planet where everyone there is working for one goal, which is to go to Mars. And his companies are so mission driven, and he is someone who responds to employees texts and calls and is the most present CEO. And I know that him and President Trump do tremendous things together. And I'm really excited to see them back, you know, doing it again.
Mark Halperin
I can afford neither your retainer nor your hourly rate. So I'm going to take advantage of your one sentence of advice for each of these. Just one sentence of a Miller pearl of wisdom. How do you get Elon Musk to pay attention to an idea?
Katie Miller
One sentence on X.
Mark Halperin
Put it on X. Okay, that's good. How do you get President Trump to be in the right mood, to deal. To deal with something?
Katie Miller
Put it on Truth. You know, I would say. I would say is, you know, President Trump is often in a very good mood these days. He can tell he's having so much fun and loving life in the Oval Office. Again, not caring what people said. Kind of like the first term. He knows who I am. He's so sure of himself. And I think oftentimes you're going to find President Trump in the best mood because he gets to do what he loves every single day.
Mark Halperin
How do you plan a party for your spouse to make sure that the majority of the president's cabinet can attend?
Katie Miller
You text everybody and just say, please remind her it's a surprise.
Mark Halperin
Okay, how do I book Stephen Miller on this show?
Katie Miller
You have to call the White House Press office. I unfortunately don't handle any of his business.
Mark Halperin
Well, I'm asking you to do it. I was asking what to do. Call the White House Press Office.
Katie Miller
Call the White House Press Office.
Mark Halperin
Okay. How do you get a child to fall asleep?
Katie Miller
We're very strict with bedtime. Our kids all go to bed at 7:30. Steven tucks them into bed every single night. And they just go to bed.
Mark Halperin
They just. You just tell them, now it's time for bed. Turn out the lights, they fall right to sleep.
Katie Miller
Each of my children is different. One of them says, please get out now. I'm going to sleep at 7:30. The other one says, rub my belly, then please get out. And my one says, can you wake me up super early in the morning and then I'll go to bed.
Mark Halperin
How do you board an airplane as one parent with three kids?
Katie Miller
Oh, gosh, I do it often. You hope and pray and apologize to everyone around you.
Mark Halperin
Do you. If people offer to help, do you let them?
Katie Miller
No, I don't let them. I'm quite a martyr when it comes to that. But I've now figured it out when I have a stroller. Actually, I just traveled recently with three kids by myself. I made them walk through the entire airport, put one kid on the suitcase, and just did it. And that's the day I let them watch an iPad and bring chocolate.
Mark Halperin
All right, the only advice I'm going to give you is if, if a grownup offers to help, let them on the boarding process. It's much easier. Just let them, let them carry something. Maybe not a kid, but a piece of equipment. All right. Katie Miller hosts the Katie Miller Podcast. Where can people obtain the Katie Miller Podcast?
Katie Miller
We're on everywhere you get a podcast, whether that be YouTube, Spotify, Apple Rumble. You can catch us anywhere you get a podcast. We're Tuesday nights at 6pm Tonight's episode is Pete and Jen Hegseth together talking about what it was like for confirmation, talking about how he handles his job, how they balance family, how often his family travels with him as secretary of War.
Mark Halperin
Man, I need to get a clip of that for my six o' clock show. Thank you for the heads up, Katie. Thank you for making time. Really appreciate it. And I'm going to send Peter, I'm going to send Stephen a memo like the way Charlie sent to Netanyahu with my own, my own, my immediate plan, see what he thinks. I'm grateful to you. Again, Katie Miller Podcast drops Tuesdays. Don't miss it. Thank you, Katie.
Katie Miller
Thanks, Mark.
Mark Halperin
All right, that's it for today's program. Grateful to you for being here. Another episode is coming up on Thursday, so we'll see you for that. Subscribe to NextUp on YouTube or wherever you get your podcast. Make sure you tell all your friends, enemies, family members, associates, et cetera, et cetera, about the show so they, like you, can always know what's coming next up.
Episode: Katie Miller Fires Back at Media Attackers, Boat Strike Constitutional Crisis, Trump's Comeback Plan
Date: December 2, 2025
Host: Mark Halperin (MK Media)
This episode explores three major topics:
The episode features candid, in-depth discussion, sharp political analysis, and straight talk about the real-life consequences of high-level public service.
[01:25–26:00]
"Your time is up, Donald Trump. And this time we mean it."
—Mark Halperin imitating the newer, calmer “Mark Kelly wing” of Democrat messaging ([08:27])
Republican strategists split the coming year into four phases, with each requiring action:
Guest: Jed Rubenfeld (Yale Law), host of Straight Down the Middle Podcast
[29:14–55:13]
Initial Position:
“There’s precedent going back over 100 years…saying it’s the President who makes that call.” —Jed Rubenfeld ([31:43])
Congressional Authority
“We are now living in a world where the President can make war—the one thing we thought we knew was that the President did not have the unilateral power to make war.” —Rubenfeld ([37:27])
Allegation:
Legal Distinction:
Why Do These Distinctions Matter?
“For hundreds of years, the line has been you can’t deliberately shoot folks floating in the water.” —Rubenfeld ([52:13])
[58:13–end]
About Her Podcast
“We had to move out of our house for security reasons…we moved into a military installation for our kids’ security, my husband’s security…That is a very sad state of affairs.” ([61:54])
“The only thing people took from us isn’t the love for my family. It is my time. And that is irreplaceable…But every day, my husband and I are making more of a difference than those people who are protesting outside my home hope to achieve in their lifetime.” ([62:37])
"They choose to demonize him…because they know that’s how you can incite violence against somebody and excuse it when it happens." ([70:48])
"[Phillip] sat there and nodded along as Jennifer Welch said Stephen was a Nazi Jew and a white nationalist…It's not a one-time occurrence." ([78:01])
“I think this is the Miller’s life forever. But I am joyful and excited to be able to change the country for the positive…” ([82:52])
“[Trump] loves to win and even when he's losing, he likes to tell you he's winning. But right now... Trump always comes back. You've never seen him down forever.”
—Mark Halperin ([11:51])
“We are now living in a world where the President can make war—the one thing we thought we knew was that the President did not have the unilateral power to make war.”
—Jed Rubenfeld ([37:27])
“There are lines you can’t cross...You just can’t do it. Even if you’re in wartime... If you kill other people’s prisoners, they’re going to kill ours.”
—Jed Rubenfeld ([46:56], [48:06])
“The only thing people took from us isn’t the love for my family. It is my time. And that is something that’s irreplaceable.”
—Katie Miller ([62:37])
“As always, the wife is more radical than the husband...” —Katie Miller ([68:27])
“Of course, it’s exactly the same. A host sits by while someone says something beyond the pale and doesn’t say anything.”
—Mark Halperin, on media hypocrisy ([76:59])
“I think this is the Miller’s life forever. But I am joyful and excited to be able to change the country for the positive...”
—Katie Miller ([82:52])
Listeners receive a comprehensive, forthright look at Washington's current tensions, from high constitutional stakes to raw personal upheaval—punctuated by memorable quotes, sharp debate, and surprising candor.