Illegal Orders and the Nuremberg Defense—Wargaming it out, So to Speak

The Democratic officials who put out the video on illegal orders were clearly implying that

  • Trump had already issued illegal orders or that he was about to issue illegal orders or that there was a clear risk that he would issue illegal orders, and that
  • anyone in the military or intelligence services who obeyed such illegal orders could suffer the same fate as the German officials who, famously and unsuccessfully, relied on the “Nuremberg defense”—“I was only following orders.”

But the officials did not explicitly say what orders they considered illegal—obviously a conscious and considered omission.

One could plausibly argue that this omission was cowardly. More to the point, one could plausibly argue that the failure to specify exactly what illegal orders they were talking about could create confusion in the minds of military personnel. Indeed, some have made plausible arguments along these lines, and the controversy will continue to grow. 

However, our President, Mango Mussolini

  • lacks the mental capacity to construct a plausible argument,
  • would not recognize the Nuremberg defense if it bit him in the ass, 
  • has no sense at all of the difference between a strong legal position and a weak legal position—he just thinks all legal argument is bullshit, and the winner is the guy who shouts his bullshit the loudest, and
  • literally does not know right from wrong.

Afflicted by these mental lacunae, Mango Mussolini cannont begin to devise a workable plan to make the Democratic officials pay for their failure to identify the illegal orders of which they spoke. Instead, he can only bluster and threaten—in this case, threaten to order his minions (1) to arrest the Democratic officials for the crime of referring to the Uniform Code of Military Justice and then (2) to procure their execution following trial in the federal criminal justice system. 

But Here’s the Thing About Threats

First of all, pretty much everyone who plays in the arena of politics or business knows that it’s a bad idea to take the hostage if you are not prepared to kill the hostage. That’s because your extreme threat, followed by supine inaction, makes you look like a blustering fool. 

And, by the way, the reason why you look like a blustering fool is that you are in fact a blustering fool.

On the other hand, what if the Justice Department does arrest Senator Slotkin, get Lindsey Halligan to indict her for treason, and put her on trial in a United States district court? Well, guess what? It isn’t illegal, let alone treasonous, for someone to make a general reference to a provision of law—here, the Uniform Code of Military Justice, Title 10 of the United States Code, Section 892, and the related case law. 

Conclusion? Either course of action—blustering followed by inaction, or blustering followed by a ridiculous prosecution in federal court—leads inexorably to failure by Trump.

The logical next step would be for Trump to tell the Proud Boys to get our their guns and go after Senator Slotkin and the rest of the crew. 

Hang ‘Em High!

Washington Post, Trump: Democrats ‘traitors’ for telling military not to follow unlawful orders: The president said lawmakers who appeared in a video committed “seditious behavior” and should be arrested and put on trial for treason:

President Donald Trump accused a group of Democratic lawmakers on Thursday of “seditious behavior” and called for their arrest for appearing in a video in which they reminded members of the U.S. military and intelligence community that they are obligated to refuse illegal orders.

“It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL,” Trump wrote on Truth Social. “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand.”

The video released Tuesday features a group of six Democrats who served in the military and intelligence community. Addressing active service members, they caution active-duty military members that “threats to our Constitution aren’t just coming from abroad, but from right here at home.”

“Our laws are clear,” Sen. Mark Kelly (Arizona), a Navy veteran, says in the video. “You can refuse illegal orders.”

“You must refuse illegal orders,” adds Rep. Chris Deluzio (Pennsylvania), who also served in the Navy.

The video does not specify particular orders that might be unlawful. But some of the lawmakers have relayed this week that they are hearing concerns from service members about the legality of strikes that have targeted people the Trump administration alleges are trafficking narcotics by sea.

The Pentagon did not respond Thursday morning to questions about the Pentagon’s post. Traditionally, the U.S. military adheres to the Uniform Code of Military Justice, which holds that service members must obey lawful orders, whether they agree with them or not. They are obligated to not follow “manifestly unlawful orders,” but such situations are rare and legally fraught. Members of the military take an oath to the Constitution, not the president.

The video, organized by Sen. Elissa Slotkin (Michigan) — who previously worked as a CIA analyst, also features Reps. Maggie Goodlander (New Hampshire), a former Navy reservist; Chrissy Houlahan (Pennsylvania), a former Air Force officer; and Jason Crow (Colorado), a former Army Ranger.

On his social media platform Thursday, Trump echoed other Republicans who have called for the Democrats to be removed from office, dishonorably discharged from the military and charged with treason — a crime punishable by death.

The stark punishment was not lost on Trump, who wrote in another post on Thursday: “SEDITIOUS BEHAVIOR, punishable by DEATH!”

He also reposted a post from a Truth Social user proclaiming: “HANG THEM GEORGE WASHINGTON WOULD !!”

The White House declined to comment on the record.

Democrats sharply criticized Trump’s threats.

“The administration should never try to force our servicemembers to carry out an illegal order,” Sen. Chris Coons (D-Delaware) said on social media. “Calling for the execution of senators and Congressmembers for reminding our troops of that is chilling behavior. Every one of my Republican colleagues needs to swiftly condemn this.”

Trump has repeatedly accused different groups and individuals of treason going back to his first presidential term, but has never followed through with prosecution, lobbing attacks on Black Lives Matter, the news media, former FBI director James B. Comey and former president Barack Obama with the claim.

Trump campaigned on prosecuting his political opponents and dispensing with the 50-year custom of insulating federal law enforcement from political influence. This year he has grown increasingly explicit in demanding specific investigations against people who have criticized him, leading directly to action by his appointees at the Justice Department.

In September, Trump pushed out a federal prosecutor in Virginia who declined to bring charges against New York Attorney General Letitia James (D) and replaced him with his own personal lawyer, Lindsey Halligan. Halligan then indicted James as well as Comey, whom Trump fired in 2017. On Wednesday, prosecutors acknowledged in court that a grand jury did not review the final indictment, a defect that Comey’s lawyers argued should cause the judge to dismiss the case.

The U.S. attorney in Miami is pursuing a broad probe against Obama administration officials, including former CIA director John Brennan and former director of National Intelligence James R. Clapper Jr. related to the investigation of Russian interference in the 2016 election. Trump officials have also initiated investigations at the president’s urging against Rep. Adam Schiff (D-California), who led the first impeachment inquiry against Trump in 2019, and Lisa Cook, a Federal Reserve governor he has sought to remove.

And on Friday, Trump directed the Justice Department to investigate prominent Democrats’ ties to Jeffrey Epstein, the wealthy sex offender who killed himself in jail in 2019. Bondi said she would proceed with that case, four months after saying the department’s review of the case found no information to pursue additional charges.

The Justice Department, Pentagon and the offices for Democratic lawmakers in the video did not immediately respond to requests for comment.

According to MAGA, Shakespeare Had a Great Idea About What to do with the Competent Lawyers

Washington Post, Justice Department struggles as thousands exit—and few are replaced

D. John Sauer, Esquire, pursued a double major, philosophy and electrical engineering, at Duke. After college, he was a Rhodes Scholar at Oxford, where he earned a degree in theology, followed by a masters in philosophy at Notre Dame. At that point, he felt a call to the bar, prompting him to go to Harvard Law School, where he “made Law Review” and earned a degree magna cum laude. After Harvard Law, Judge Luttig of the Fourth Circuit gladly offered him a position as clerk, and from there he went on to provide his considerable intellectual talents as clerk to Justice Scalia. 

No slouch is D. John Sauer, Esquire. As a consequence of his brilliance and prestigious education, Mr. Sauer knew exactly what to tell the judge who asked if it would be A-OK for a president to order Seal Team Six to assassinate a political enemy. “Yessiree bobtail,” readily responded D. John Sauer, Esquire, “that would be just hunky-dory.”

Having achieved victory in the presidential immunity case through the ministrations of D. John Sauer—electrical engineer, philosopher, theologian, and legal scholar—Mango Mussolini knew exactly whom to appoint as Solicitor General, the position Mr. Sauer currently graces. 

Clearly, Trump and his Attorney General, Ms. Bondi, would like to shitcan all the normal lawyers from the Justice Department and replace every mother’s son and daughter of them with clones of D. John Sauer, Esquire. 

Sadly, however, as the Washington Post reports today, the American bar is not populated by lots of Harvard trained Nazis, eager to replace the thousands of lawyers who have been fired or who have left the Justice Department. Nor are the law schools at Columbia and Harvard and Georgetown filled with eager young Fascist whipper-snappers, read to pour their hearts and souls into the struggle to establish authoritarianism. WaPo writes,

Current Justice Department prospective hires are more likely to have political backgrounds than have been typical in the past, coming from Republican congressional offices and advocacy groups, the people familiar with the hiring process said. Others are young attorneys with little relevant experience or mid- to late-career attorneys who have no background in prosecutions.

The Shutdown Deal

Ezra Klein (N.Y. Times), What Were Democrats Thinking?

As far as I can tell, the headline is intended to be read in a straightforward way—“WHAT were Democrats thinking?”—not in a sarcastic tone of voice—“What were Democrats THINKING?” 

In any event, as per usual, Ezra Klein has a dozen or so really interesting things to say—some of which might not have occurred to you and me—and it’s best to let him speak for himself. 

But as a preamble, two brief comments from me. First, some of the eight senators who joined the Republicans are political heavyweights, and people not known for an inclination to wimp out. So, before your knee jerks and you hurl criticism at them for wimping out, please think twice.

Second, among the really interesting things one might say about this putrid mess, the most interesting, IMHO, is that Republicans are now set up to cast spectacularly unpopular votes to screw a large portion of the public on the health insurance costs. 

Ezra Klein writes, 

Back in September, when I was reporting an article on whether Democrats should shut down the government, I kept hearing the same warning from veterans of past shutdown fights: The president controls the bully pulpit. He controls, to some degree, which parts of the government stay open and which parts close. It is very, very hard for the opposition party to win a shutdown.

Which makes it all the more remarkable that Democrats were winning this one. Polls showed that most voters blamed Republicans, not Democrats, for the current shutdown — perhaps because President Trump was bulldozing the East Wing of the White House rather than negotiating to reopen the government. Trump’s approval rating has been falling — in CNN’s tracking poll, it dipped into the 30s for the first time since he took office again. And last week, Democrats wrecked Republicans in the elections and Trump blamed his party’s losses in part on the shutdown. Democrats were riding higher than they have been in months.

Then, over the weekend, a group of Senate Democrats broke ranks and negotiated a deal to end the shutdown in return for — if we’re being honest — very little.

The guts of the deal are this: Food assistance — both SNAP and WIC, I was told — will get a bit more funding, and there are a few other modest concessions on spending levels elsewhere in the government. Laid-off federal workers will be rehired and furloughed federal workers given back pay. Most of the government is funded only until the end of January. (So get ready: We could be doing this again in a few months.) Most gallingly, the deal does nothing to extend the expiring Affordable Care Act tax credits over which Democrats ostensibly shut down the government in the first place. All it offers is a promise from Republicans to hold a vote on the tax credits in the future. Of the dozen or so House and Senate Democrats I spoke to over the past 24 hours, every one expected that vote to fail.

To understand why the shutdown ended with such a whimper, you need to understand the strange role the A.C.A. subsidies played in it. Democrats said the shutdown was about the subsidies, but for most of them, it wasn’t. It was about Trump’s authoritarianism. It was about showing their base — and themselves — that they could fight back. It was about treating an abnormal political moment abnormally.

T he A.C.A. subsidies emerged as the shutdown demand because they could keep the caucus sufficiently united. They put Democrats on the right side of public opinion — even self-identified MAGA voters wanted the subsidies extended — and held the quivering Senate coalition together. You shut the government down with the Democratic caucus you have, not with the Democratic caucus you want.

The shutdown was built on a cracked foundation. There were Senate Democrats who didn’t want a shutdown at all. There were Senate Democrats who did want a shutdown but thought it strange to make their demand so narrow: Was winning on health care premiums really winning the right fight? Should Democrats really vote to fund a government turning toward authoritarianism so long as health insurance subsidies were preserved?

And what if winning on the health care fight was actually a political gift to Donald Trump? Absent a fix, the average health insurance premium for 20 million Americans will more than double. The premium shock will hit red states particularly hard. Tony Fabrizio, Trump’s longtime pollster, had released a survey of competitive House districts showing that letting the tax credits expire might be lethal to Republican efforts to hold the House. Why were Democrats fighting so hard to neutralize their best issue in 2026?

The political logic of the shutdown fight was inverted: If Democrats got the tax credits extended — if they “won” — they would be solving a huge electoral problem for Republicans. If Republicans successfully allowed the tax credits to expire — if they “won” — they would be handing Democrats a cudgel with which to beat them in the elections.

This is why Senator Chuck Schumer’s compromise, which offered to reopen the government if Republicans extended the tax credits for a year, struck many Democrats as misguided. Morally, it might be worth sacrificing an electoral edge to lower health insurance premiums. But a one-year extension solved the Republicans’ electoral problem without solving the policy problem. Why on earth would they do that?

In any case, Republicans were not interested in Schumer’s offer. Trump himself has shown no interest in a deal. Rather than negotiating over health care spending, Trump has been ratcheting up the pain the shutdown is causing. Hundreds of thousands of federal workers have been furloughed or fired. The administration has been withholding food assistance from Americans who desperately need it. Airports are tipping into chaos as air traffic controllers go without pay.

More than anything else, this is what led some Senate Democrats to cut a deal: Trump’s willingness to hurt people exceeds their willingness to see people get hurt. I want to give them their due on this: They are hearing from their constituents and seeing the mounting problems and they are trying to do what they see as the responsible, moral thing. They do not believe that holding out will lead to Trump restoring the subsidies. They fear that their Republican colleagues would, under mounting pressure, do as Trump had demanded and abolish the filibuster. (Whether that would be a good or a bad thing is a subject for another column.) This, in the end, is the calculation the defecting Senate Democrats are making: They don’t think a longer shutdown will cause Trump to cave. They just think it will cause more damage.

If I were in the Senate, I wouldn’t vote for this compromise. Shutdowns are an opportunity to make an argument, and the country was just starting to pay attention. If Trump wanted to cancel flights over Thanksgiving rather than keep health care costs down, I don’t see why Democrats should save him from making his priorities so exquisitely clear. And I worry that Democrats have just taught Trump that they will fold under pressure. That’s the kind of lesson he remembers.

But it’s worth keeping this is perspective: The shutdown was a skirmish, not the real battle. Both sides were fighting for position, and Democrats, if you look at the polls, are ending up in a better one than they were when they started. They elevated their best issue — health care — and set the stage for voters to connect higher premiums with Republican rule. It’s not a win, but given how badly shutdowns often go for the opposition party, it’s better than a loss.

Are We Drifting into Authoritarianism—Or Maybe Drifting into Chaos?

When I was three years old, I had to learn by experience what are the consequences of sticking the table knife into the electric socket. Apparently, large numbers of our fellow citizens need to learn from experience that it is unwise to pick as your airline pilot someone suffering from severe mental illness, who lacks common sense, and who is quickly becoming senile and demented. Such a pilot is likely to fly the plane into the ground. It’s a shame the passenegers didn’t know that before the picked him. 

The Markers of Authoritarianism

I think the New York Times did a good job laying out twelve markers of authoritarianism. (See the immediately preceding post.) That said, I also think some context is badly needed.

What Trump Doesn’t Know

Trump doesn’t know how to do second-order thinking. He cannot accurately grasp the consequences of his actions, or the consequences of the actions of others.

Trump doesn’t know how to think long term. Witness, for example, his thoughts on the filibuster.

Trump doesn’t know how to use any tools to achieve his goals, apart from bribery and threats, including threats of violence. 

It is a constant surprise to Trump that, while some people will succumb to bribery and some will succumb to threats, others will not. In fact, for many, the threats will, from Trump’s perspective, be entirely counterproductive. 

As a sociopath lacking all empathy, Trump is unable to appeal to others’ empathy, because he does not know that most people are empathetic, at least to some degree. 

Trump doesn’t know how to construct a plausible argument. Thus, on the rare occasions when his positions have some merit, he cannot make a logical argument. 

In fact, Trump is unaware that some arguments are backed by facts and logic, and some are just bullshit. To him, legal disputes are just a matter of which side screams the loudest. Because he is unaware that some legal positions are well founded and others are not, and because he cannot accurately predict the consequences of his actions, and because he is incapable of second order thinking, he has ordered the prosecution of Letitia James and James Comey even though the prosecutions will fail, and he and his legal team will be revealed as the idiots they are. 

By contrast, a rational proto-fascist would have known that ordinary prosecutions of his enemies would fail, and he would do better to encourage violent action against them, outside the formal legal structure. 

But Trump is the President

So, he can do a lot of mischief and cause a lot of chaos. 

Trump’s Popularity is Headed South

From The Economist this morning:

Inflation and Criminal Immigrants

Trump’s slender margin of victory in 2024 was based on inflation and fears of criminal immigrants. 

A rational proto-fascist would have kept his promise to try to lower inflation. A rational wannabe dictator would have realized that policies that tend to promote inflation will in fact increase inflation. Someone capable of second order thinking would have realized that higher inflation would decrease his popularity and make it harder for him to achieve his authoritarian dreams. Someone not blinded by grandiosity would recognize his loss of popularity when he sees it.

A rational nascent Nazi would recognize that if he has made inroads into the Latino community by promising to round up criminal immigrants, then he should round up criminal immigrants, not terrorize the whole Latino population. 

And What About the Supreme Court?

The Supreme Court is slow walking Trump’s emergency application to invade Illinois. On Wednesday of this week, they’ll hear oral argument on Trump’s tariff power grab. Other issues will follow in due course. 

They game of Trump v. Justice is under way, but there are more innings to play. In the last game of the World Series, the Blue Jays were ahead at the end of eighth inning, but the Dodgers won the contest. Let’s let this game play out.  

Yeah, But What if Trump Just Defies the Courts?

Well, as someone once said, aye, there’s the rub.

Let’s say Trump doesn’t want to obey a Supreme Court order and directs [insert name of police unit, National Guard, Army battalion, etc. etc.] to act in contravention of the Court’s decision, will the people making up that official body obey Trump or will they obey the Supreme Court or will law and order just break down?

I put it to you that it’s hardly a foregone conclusion that the … police, National Guard, Army, etc. … will just jerk their knees and do exactly what Trump tells them to do. 

But Because I Can Do Second Order Thinking, I Post the Next Question

If the official organs of state power refuse to obey illegal orders, will Trump just call out the Proud Boys and the other hooligans?

Answer: I don’t know, but he has done it before.