#SistersInLaw - Episode 264: "Unlawful Orders"

Politicon | November 29, 2025
Hosts: Jill Wine-Banks (B), Barb McQuade (A), Joyce Vance (C)

Overview

This episode delves into a series of pressing legal and political issues facing the United States in late 2025. The #SistersInLaw team—Jill Wine-Banks, Barb McQuade, and Joyce Vance—take listeners through the aftermath of the D.C. National Guard shooting, legal controversies surrounding the deployment of federalized troops, the complex fallout from unlawfully appointed U.S. attorneys and high-profile indictments, and a new controversy involving members of Congress being investigated for a video reminding service members to disobey unlawful orders. The discussion is rich in legal context and analysis, filled with both serious insights and moments of camaraderie and humor.

Key Discussion Points

1. The D.C. National Guard Shooting and Legal Questions of Deployment

(08:07–24:19)

• Condolences and Context:
  The hosts open with sorrow over the shooting of two National Guard members in D.C.—one killed, one wounded. The discussion quickly turns to the legal underpinnings of the Guard's deployment.

• Court Ruling Against Deployment:

  • Federal Judge Gia Cobb ruled the deployment of federalized troops in D.C. as unlawful, citing the constraints of the Home Rule Act and the unique constitutional status of Washington, D.C.
  • Despite the ruling, troops remained due to a three-week stay to allow for government appeal.

  "She said that she would delay the implementation of her order for three weeks to give the government an opportunity to appeal..." (A, 09:56)

• Policy and Political Implications:

  • Trump administration’s rapid move to increase troop presence after the incident is seen as more political than legal or necessary.
  • Potential for legal wrangling and further stays if appealed.

  "It violates the spirit of the judge's order. It violates the letter of the judge's order. But because she has stayed it for three weeks ... it's not enforceable until that time." (A, 16:16)

• Refugee Vetting Backlash:

  • The shooter, a recent refugee from Afghanistan, triggers a political response to slow or halt the vetting and acceptance of additional Afghan refugees, as well as review status of those already admitted.

  "They are now starting to reevaluate everyone who's here, who's from Afghanistan, and possibly from 18 other countries..." (B, 14:05)

• Law Enforcement Investigation:

  • Investigation unfolding: examining the shooter’s motive, background, weapon acquisition, social connections, and prior CIA employment.

  "They have started interviewing his family... neighbors, friends... They will look for his phone records..." (B, 19:12)

• Risks in Prosecution:

  • Trump’s public commentary threatens to taint the jury pool, though experienced prosecutors believe a fair trial remains possible.

  "When you've got...the President ... making these kinds of comments, it makes it that much more difficult." (A, 22:55)

2. The Comey and James Indictment Dismissals: The Unlawful Appointment Fallout

(30:50–47:53)

• Improper Appointment of U.S. Attorney:

  • Lindsey Halligan’s appointment as Eastern District of Virginia U.S. Attorney struck down as unlawful; indictments against Comey and Letitia James dismissed on procedural, not substantive, grounds.
  • Issue stems from statutory limits to interim attorney appointments (maximum 120 days before appointment must come from the court if Senate confirmation has not occurred).

  "You get 120 days and that's it. That's what the statute says." (A, 34:10)

  • Halligan, after predecessor Eric Siebert’s departure, could not restart the 120-day clock.

• Scope and Ramifications of the Dismissals:

  • All actions taken solely by Halligan—including indictments—ruled unlawful and set aside.

  "All actions flowing from Ms. Halligan's defective appointment...including securing and signing Mr. Comey's indictment, were unlawful exercises of executive power and are hereby set aside." (C, 35:59)

  • Dismissals are “without prejudice,” meaning, theoretically, indictments could be refiled—if by someone properly appointed and within proper deadlines.

• Statute of Limitations Debate:

  • For Comey, the statute of limitations had nearly expired; debate revolves around if the "six month grace period" for re-indictment applies when original indictment was unlawful ab initio.

  "Because there was never any valid indictment filed whatsoever...the statute means, you know, dismissal for a variety of reasons about a failure to state a claim..." (A, 37:37) "I think it's like a genius argument...if the indictment wasn't valid, nothing ever happened..." (C, 40:08)

• Vindictive and Selective Prosecution:

  • Comey and James’s defense teams are advancing claims of political vindictiveness and selective prosecution.
  • Prosecution attempts thought unlikely to go forward, due to both legal flaws and the "bogus" nature of the underlying cases.

3. Members of Congress Investigated for Military Law Video: Sedition or Free Speech?

(54:00–71:06)

• Background:

  • Six congressional members, all with military or intelligence backgrounds, filmed a video reminding service members of their obligation to disobey unlawful orders.
  • Trump called the video "sedition", sparking FBI and DOD investigations.

  "Trump has called it sedition. Others call it free speech. Let's break it down..." (A, 54:00)

• Legal Analysis:

  • All hosts agree: the video is a straightforward recitation of military law (Article 92, UCMJ) and global war crimes doctrine—there's never been a Nuremberg defense for illegal orders.
  • No legal basis for sedition charges; this is classic First Amendment-protected speech.

  "There is no merit to what they're being accused of. Article 92...makes it very clear that you cannot obey an unlawful order." (B, 57:31)

• Intimidation and Chilling Effect:

  • Both the FBI inquiry and threat of military court-martial (especially for retired officers still on pension, like Sen. Mark Kelly) are described as unprecedented, political intimidation.

  "...to open a criminal FBI investigation into a United States Senator over this...that's next level sort of authoritarianism." (C, 61:44)

• Speech or Debate Clause:

  • The clause protects legislators from prosecution for official acts, a protection hosts assert applies to the video.

  "The speech or debate clause protects members of Congress from criminal or from civil liability for official legislative acts..." (C, 66:41)

• The Real Harm:

  • The mere announcement of investigations serves to chill dissent and silence critics, representing a dangerous use of executive power.

  "It is chilling. That's its intent—to stop people from pushing back against what is clearly improper." (B, 69:35)

4. Listener Q&A Highlights

(75:19–81:36)

• Political Targeting in Investigations (Epstein files):

  • Prosecutors should investigate crimes, not people; selecting targets based on party is antithetical to justice.
  • Selective/vindictive prosecution could provide a defense under the First Amendment.

  "Prosecutors don't investigate people, they investigate crimes." (C, 76:59)

• Lawyers’ Public Commentary:

  • Lawyers' public statements after court may stem from genuine belief, strategy, or client management—but must remain within ethical bounds to avoid undermining trust in the legal process.

• Pardon & State Prosecutions (Ghislaine Maxwell):

  • A federal pardon wouldn’t prevent state prosecution for sex crimes committed in New York or Florida.

Notable Quotes & Moments

• "This is a rare occasion where I disagree with you, Barb. I think we might need to have like a deli lunch bet over this one."
  — Joyce Vance (C), 40:00, on the statute of limitations debate over re-indicting Comey.

• "There is no Nuremberg defense of 'I was just following orders.' You can be tried for murder or whatever the other crime happens to be."
  — Jill Wine-Banks (B), 60:29, on the military law video and legal obligations.

• "To open a criminal FBI investigation into a United States Senator over this...that's next level sort of authoritarianism."
  — Joyce Vance (C), 61:44

• "If you made this up and put this on a law school exam...you would get fired, right?"
  — Joyce Vance (C), 55:09, on the absurdity of current legal-political scenarios.

• "If they want to pursue this case altogether, then doing a redo might be better off. However, what might even be better is to just stop and go home."
  — Barb McQuade (A), 49:40, on the Comey and James cases.

• On chilling dissent:

  "The whole intent of this is to limit the protections of speech and debate, to limit and scare people into not speaking out...even if it's thrown out, it's been a disruption of your life." (B, 69:35)

Timestamps for Important Segments

• Condolences & D.C. Guard Legalities: 08:07–12:18
• Refugee Vetting & Afghan Shooter Analysis: 12:18–15:01
• Increase of Federal Troops: 16:16–18:48
• Forensic Details of Investigation: 19:12–21:38
• Trump’s Comments & Jury Pool Risks: 22:55–24:19
• Comey/James Indictment Dismissals: 30:50–47:53
• Military Law Video—Legal and Political Fallout: 54:00–71:06
• Listener Q&A—Selective Prosecution, Legal Ethics, Pardons: 75:19–81:36

Tone and Noteworthy Style Points

• The hosts blend precise legal analysis with a conversational, occasionally irreverent, tone.
• Regular asides on food, family, and podcast merch add warmth and relatability.
• The trio’s camaraderie is evident—disagreements, bets, and laughter abound, providing glimpses into their personalities and collegiality.

Summary

This episode offers an essential, in-depth look at the latest legal flashpoints in the nation’s capital, underscored by analysis only veteran federal prosecutors and legal scholars can provide. It serves as both an explainer for complex constitutional, statutory, and ethical matters and a reflection on the broader erosion of governmental norms and justice amid rising authoritarian tendencies.