Advisory Opinions - Trump’s ‘War Crimes’

Episode Date: April 9, 2026

Sarah Isgur and David French discuss President Donald Trump’s rhetoric over Iran, what constitutes a war crime, and what happens if a military officer fails to obey an order or regulation. The Agenda:–John Mulaney gives SCOTUSblog a shoutout–Threatening war crimes–Will President Donald Trump ever see the Hague–Judge Scalia rolling over in his grave–Article 92 and disobeying orders–David answers questions Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. And boy, we got a pod today. John Malaney reads Scotus blog. And then we're going to switch to war crimes.

Scalia turning over in his grave over legislative history. And is David so wrong about large language models and artificial intelligence? And before we dive in, David, my. my book is officially out on Tuesday, last branch standing, and I just thought that AEO listeners would enjoy knowing that on Tuesday morning, the day the book comes out, I am going on The View. I did not know that.

That's fantastic. I have some trepidations. Oh, it'll be great. You'll do great. No, you do well in those settings. If you want to tune into the View on Tuesday, April 14th, and if you've pre-ordered your book, you will have your copy in hand on Tuesday.

So you can you can raise your copy high into the air while tuning in to the view. And I don't know, it'll be it'll be an experience one way or the other, right? By the way, just from a like, I envy your timing. Can I just say that? Like, I am so envy. I'm green with envy over your timing because your book is coming out right after tariffs and right after the birthright citizenship argument. where the last branch standing argument is sort of maximum right now.

You are, your book is landing in exactly the point where the court is agreeing with the title of your book. That's incredible. If we're doing the Youngstown framework, it's at the apex of its power. Yes, exactly, exactly. Well, I've got the view on Tuesday, morning Joe on Wednesday morning, and I'll be on Bill Mark. on Friday, April 24th. So it's a fun lineup. I've got other book events. You can go to Sarah Isgar.com to see what other cities I'm going to beyond TV. But David, I think it's time to go. Well, David, just a fun few updates from our legal universe at large. One, the Supreme Court

Historical Society's hometown program has opened up new cities for this summer and they're accepting applications, Danville, Kentucky, Chattanooga, Tennessee, Portland, Maine, Minneapolis, Minnesota, Buffalo and Rochester, New York, and Louisville, Kentucky. So if you know a high school student near any of those cities, they should definitely be applying for the hometown program in their hometown. Danville, Chattanooga, Louisville, these are three places I've spent a lot of time, Sarah. This is great. Coming into flyover country, I love it. It's fantastic. And David, also in our extended universe. It's the thing everyone is talking about. Twitter has gone crazy. I mean, it's the biggest thing for SCOTUS blog since I don't know what. This is it, right?

Oh, oh, I know exactly what you're talking about, Sarah, and it has to be peak. This is peak stuff. John Mullaney. I don't want to steal your thunder. Go ahead. You say it. Well, maybe we'll just roll the clip. This is John Malaney on Stephen Colbert. last week. Listen, you're an interesting cat. A few months ago, you were spotted somewhere unexpected. Okay. A Supreme Court hearing.

I went to see them argue Learning Resources Incorporated versus Trump, otherwise known as the Tariff's case. My good friend that I think you know, Neil Katiaw. Sure, sure. Former Solicitor General. Yes, former acting Solicitor General was arguing against the tariffs in front of the Supreme Court.

He invited me to go watch. We're working on a Supreme Court project together, but I'm also a Supreme Court argument nerd. He is my first live argument. I sat in the back, and it was incredible. Wait a second. Yes. So let's go back one. Sure.

You're a Supreme Court argument nerd? Do you listen to them like their podcasts? Yeah, so they're on YouTube. They're on SCOTUS blog or YouTube. You can listen to the whole four-out. Just audio, right? There's no video. No, no. They never allow cameras in there. But they are now, like, they have pictures,

like the different person talking glows, you know, so you can follow it. And you have pretty advanced stuff. Oh, okay. But, like, kind of like Grateful Dead shows, like I just put on different arguments. And it's the same people every time, same clothes, but always something different.

Wow, do you have a favorite? Favorite argument? Favorite argument? Anything like, go like, oh, it's one of those days. I gotta listen to Santa Clara versus Southern Pacific Railroad. Oh, that's a good one. You know that one? Oh, yeah, 1884.

Yeah. Yeah. I have, there was recently one where there was a real argument, like a fight broke out. Between the person. One of the advocates accused the other side of flat out lying, and Gorsuch was like, hey, we don't say lying. And they were really got into it.

It got pretty hairy. And I'm sorry I don't have it, but we'll put it in the show notes. Yes. But my friend argued the case, and I was very excited. Neil Katiel argued and won, right? But he didn't know that day he'd won, but he argued it brilliantly. And it was really like watching a great stand-up.

It's the same principle arguing in front of the court as doing stand-up comedy. You've got 15 seconds to get them, and that's it. You have to come out of the gate really hot. You have to say, Mr. Chief Justice, and if it pleases the court, and then have, like, a killer sentence. And he said, tariffs are taxes, full stop, which obviously the president can't do

without Congress's approval. Nailed it. He watched out of state, right? And I punched that up over it. And that's what I open with every night now. But he argues this brilliantly. He walks out onto the steps of the Supreme Court on one first street, just like a movie, and all these cameras come up to him. And the first question was, do you know why John Mulaney was at the argument today?

David, there's almost too much to love about this. So, first of all, John Malaney, obviously a SCOTUS blog fan, and that's important. And we welcome him into the nerd tribe. No word yet on whether he listens to advisory opinions, but he and Professor Amar, who obviously is friend of the pod, are good buddies. So now that Amarica's constitution is part of our extended universe, we welcome you, John Malaney, into A.O. Nerdworld. Oh, it's only a matter of time before you're going to notice Malaney and stand up referring to buckets. He's going to gnaw dog hecklers. I mean, it is coming. There's just no question about it.

Okay, but let's actually break down some of his point here. I mean, first of all, the Grateful Dead comparison going to Supreme Court arguments. I kind of loved it, actually. Yeah. And, you know, when he's talking about Justice Alito and just the way, my favorite part is he's talking about the comparisons between being an oral advocate and a standup and coming out of the gate hot. And what's fun about it is he's obviously exaggerating for fun, you know, for fun. and for comedic effect, but like the best comedy, it all resonates with the truth. It all connects with the truth in a really interesting way. So I just thought that was a really fun moment and diversion from, I don't know, Sarah, have there been any grim events happening? I, you know,

I turned off my phone. I don't know. What's going on? I really appreciated the fact that he, in fact, you know, as you say, David, like the best comedy it exaggerates, but it comes from the truth. and you kind of got to know your subject. And so when he says, you got to come right out of the gate, Mr. Justice and may it please the court, and then you've got to have a killer line. Like, he knew the thing you have to say before you start going. Like, he's obviously very good at noticing these things. And I appreciate that. There's this moment where Colbert asked him what his favorite argument is. And like, clearly he, like, maybe doesn't quite know what to say to that one. And Colbert says Santa Clara County versus Southern Pacific Railroad.

And I was sort of like, what? And this is an 1886 case. And it basically, it's John Marshall Harlan, majority opinion, finding for a railroad company saying that the Equal Protection Clause of the 14th Amendment grants constitutional protections to corporations. I am dying to know why Colbert had that at his fingertips. I think he's being funny, certainly about the oral argument being his favorite, right? Like, what is happening here? I think that that had to be just a bit because, you know, picking out a real case and as, you know, when I saw that, I was like, wait, what?

That is not, my strength is not remembering case names, which is always. been kind of a struggle on the podcast because that has never been my strength. I don't think Morse v. Frederick, I think bong hits for Jesus, right? I remember the cases by their short description more than I do by their name. And so I struggle with that a little bit anyway. I don't know why that is. It's like a mental tick that I have. And so when I was thinking, oh, I'm about to embarrass myself. I don't know off the top of my head what that case is. But it's not, I mean, that's an important case, but it's definitely not, you know, one of the front of mind con law cases. Nor one that you would expect Stephen Colbert to reference on the merits on anything.

And I've always thought Stephen Colbert is like one of the highest IQ. I think all of these very successful comedians actually have incredibly high IQ. But even among that group, I think Stephen Colbert like has sort of an overdrive factor, kind of a savant. But like that, I was like, yep, that makes sense. Of course Stephen Colbert would cite an 1886 case. I mean, yeah, and I can't agree more about like the high IQ. It's not just high IQ.

It's extremely rapid fire recall. Like, and the ability to remember obscure things, to call up a quip, to call up a thought. Like, it's that their brain works at very. high speed. It's just very obvious because if you've done anything, like if you have been in oral arguments, if you've been in a situation where you have to react on your feet to stuff, that's a muscle. It's a mental muscle that you have to exercise and exercise and exercise. And these guys, by the time they get to the stature of a late night host or a, you know, a legendary stand-up, you know, it's like watching LeBron and his prime, you know, in some ways. It's really, it's pretty

impressive. Well, and to bring that back full circle, that is kind of like being. an oral advocate at the Supreme Court. You know, you're top of your game and you've got to have a lot of those same skill sets. You're using them for a different purpose, the quickness, the speed, the agility. But, you know, maybe Malaney's on to something. Yeah. Yeah. No, it's, I thought it was fantastic. I really enjoyed that. Well, thanks for reading Scotus blog. We appreciated the shout out. David, I want to move to a very similar topic, which is the war in Iran. We got a question from a listener that I want to start with, which is, can the threat of a war crime be a war crime? Right. I thought that was a really good question because in normal criminal law, the threat to commit a crime is a crime, your money or your life.

You know, that is, you're threatening somebody. The threat itself is the crime, right? So a person who hands over money in response to a threat, a threat of violence, you know, the threat itself, even if the money is not handed over, the threat itself is the crime. Is there a comparable concept in an international law of armed conflict? And I would say, in theory, in theory, yes. in practice, much tougher to say that. Because, you know, when you're looking at war crimes prosecutions, war crimes prosecutions, it's a relatively recent question. So, I mean, it's a question I just got yesterday. So I haven't had a chance to, like, really dive in and research

the answer to it. So this is a conceptual answer. And then based on what I know about successful and completed war crimes prosecutions, I can't recall, and I know that there will be listeners who, if I can't recall it and it exists, they will be able to recall it, where you had a war crime's prosecution based purely and only on a threat of a war crime versus, say, Putin, for example, threatens all manner of things all the time. He rattles the nuclear saber, for example. But if you're looking at really the foundation of the war crimes indictment against him, it's based on the actual attacks, the actual removal of children from Ukraine, the actual attacks on Ukrainian infrastructure, the actual invasion itself. And so it's very difficult to achieve a war crimes prosecution. And they're just almost always going to be based on the completed act. However, there was a really interesting interview in PBS where a retired judge advocate said, look, there is an independent. war crime of sowing terror in a civilian population. In other words, trying to sow public panic and terror. And it's arguable that a threat to end a civilization, just all by itself, could sew

that kind of terror in a civilian population. But I think the bottom line reality is the way to describe it is conceptually, yes, conceptually a threat of a crime can be a crime in the international law of armed conflict. However, practically, no, practically it would be exceedingly unusual and exceedingly rare. Threats of international law violations are just common in the world. It's very common, not from American presidents, but it's very common from other world leaders. It's the actual completed war crime, so to speak, that is the one that, is the one that tends to get prosecuted. But I thought it was a very perceptive question because there were a lot of people who are sort of saying, well, if he doesn't do it, it's like no harm, no foul, that there isn't

any actual attack on desalinization plants. There's no actual attack on purely civilian bridges and power plants. And we talked through last time the sort of dual use, that there are circumstances in which you can attack a power plant. But it's presumptively off limits. It's a bridge. A bridge is. presumptively off limits, but you can overcome that presumption by showing clear military use, and the military uses outweighs the value of it to the military, outweighs the value of it to civilians, for example, is one part of the analysis. But I thought it was a very good question, because it really does go to that sort of defense of Trump that says, well, he didn't do it. So why were you clutching your pearls? Why were you so alarmed? There's no war crime

until the bombs fall. And so I thought it was a perceptive question, a very good question. And I think when you think through it, you can see the clear harm of threatening a war crime. You can see the clear difficulty that places, puts the military in. But at the same time, you know, the threat itself is going to be something that would be exceedingly difficult to prosecute. And by the way, the challenge of prosecuting an American president for war crime, I mean, that would be, that would be a world historic event if that were to happen. And it's very hard to see a path where that would happen, especially with the president having the pardon power that he could pardon himself in theory, which would, of course, lead to an extended court battle. But I'm not confident that the Supreme Court would rule that a president cannot pardon himself. I don't see any limitations on the pardon power that exclude the court. president from that scope. And you're just talking about prosecutions here in the United States.

You're not talking about the Hague or any of the international law tribunals. Right. And it would be very difficult for me to see the Hague indicting Trump based on a threat of a war crime alone. First, we have not conceded to the Rome statute. So the jurisdiction of the Hague gets very iffy. It's very iffy. Now, but if you, if the Hague attempted to establish jurisdiction, this opens up a precedent where they're going to be indicting like Kim Jong-un every six months or Vladimir Putin every six months because these guys rattle the nuclear saber. They promise, you know, Iran promises like death to Israel. Well, that's that's a threat of a war crime, right? And so threatening a war crime is a relatively common behavior.

by totalitarian societies in the world. That's common. Threatening a war crime is not common for American presidents. That is not. And so I think the shocking distinction, it was a shocking moment to see an American president. And I say war crimes, Sarah, let's be really clear here. The literal words that he used, the literal words that he used, if he set them in motion, that's not just a war crime.

A war crime could be something like a soldier, ex-executive. an individual soldier executes a civilian. That's a war crime. When you're talking about destroying a civilization, that's a different category of crime. That's called a crime against humanity. Why do we know that the actions that Trump threatened could constitute a crime against humanity? Because those same actions, Vladimir Putin has attempted many of them. He has attempted a comprehensive bombing of Ukrainian infrastructure, and that has actually been the foundation of the UN claim that Putin has committed crimes against humanity and the attacks on Ukraine. So what Trump was threatening was essentially the very thing that the U.S. has been condemning Russia for for four years, the comprehensive

attack on the civilian infrastructure to punish the civilians, to create a degree of suffering that requires the nation to yield. That is what Vladimir Putin has been trying in Ukraine for four years. That's what America has been condemning for four years. That is a core part of the war crimes allegations against Vladimir Putin that have been issued by the UN and other international institutions. And so what he was threatening here by its literal terms was a grave breach of international law. And I feel like the term war crime doesn't quite do it justice. It's crime against humanity, the literal words that he was using. One last thing before we move on, even as I was talking, I was working it through in my mind. And I would say there is one area of a

threatened war crime, where the punishment, at least in the United States military, would be swift and severe. And it's a threat. And that would be if, say, an officer held a gun to the head of a detainee and said, I will kill you unless you give me the information. That is a threat that is a crime in the same sense that if somebody's holding you up at a bank, your money or your life, that's a very immediate, understandable, threatened crime that is a crime.

when I'm saying it's theoretical when you come to this point of national leaders, we don't have examples of, say, someone rattling the saber and from the standpoint of using the national military and then saying the very fact that you threaten to use military force as a world leader is by itself a war crime. That is something that that's not where war crimes prosecutions happen. They happen when once the world leader deploys the force and uses the force. But it would be a mistake to say there would be no war crimes prosecutions with just a threat because I am aware of prosecutions in Iraq for under various, under similar circumstances. So this gets to a larger thing that maybe we don't need to spend a ton of time on, but I just want to touch on so that people kind of know where I'm coming

from. I think I've mentioned this in the past. Similarly to when I've said domestically, antitrust law doesn't exist. It's sort of vibes. It's whatever is in your heart. International law exists even less. And look, here's the punchline. At the end of the day, international law is, might makes right, international law only exists to the extent that someone is willing to enforce that with military force. And it's an agreement among nations that they would rather, you know, work this out in a courtroom or in a, you know, meeting room of some kind rather than use force. But that's all that international law is. It does not, like, exist separately from, from any of that. And so, like, the ICC, the International Criminal Court

is where we try war crimes, like individuals who have been accused of war crimes. The International court of justice that settles disputes between nations. And again, like those nations are saying we would rather, you know, mediate our dispute rather than use a military conflict. In that sense, international law exists, but also doesn't exist, if that makes sense to anyone out there. The ICC thing is really interesting to me, David, because I have stared at this for a long time and you can't, I don't know, once you see it, you can't unsee it. So the ICC has, has indicted 73 people for war crimes. Let me read you the countries who have had people investigated.

The Democratic Republic of Congo, Uganda, Darfur in Sudan, the Central African Republic, Kenya, Libya, Ivory Coast, Mali, Georgia, Burundi, Bangladesh-Mayy, Afghanistan, Palestine, the Philippines, Venezuela, and Ukraine. Of those 73 public indictments, three are serving sentences, seven have finished sentences. The rest are in some other limbo world. And this, of course, makes sense, David,

because no big actor, sophisticated actor, whatever you want to call it, Basically, no one who's on the UN Security Council with veto power is ever going to allow one of their people to be indicted slash brought in to the ICC. And so instead, you see the ICC, I think all of the 10, by the way, were from African countries. Well, the ICC has indicted issued an arrest warrant for Putin. So they have issued an arrest warrant for Putin. Sorry, yeah, but like nothing's, no one thinks anything is going to happen with that.

No, no, there's no police force that now is going to serve a warrant in Russia. Right. Yeah. So the only people who are actually in any fear of quote unquote justice from the ICC are from countries that, you know, these African countries that end up with horrible civil wars, genocides, et cetera. And again, not saying that's a bad thing. They are doing horrible stuff down there. But nevertheless, doesn't that strike anyone as a bit. odd. Like if you're from one of those countries, you're going to the ICC, but if you're from one of

these countries, there's no international law. And I guess that's my point, David. There's no international law. Well, there is international law, even for great powers when they lose a war. Nuremberg, Japan, you know, one of the things I'm writing, I'm writing a piece for the Times right now that begins with a quote by Douglas MacArthur. And this is MacArthur when he is reviewing war crimes findings against Japanese soldiers and Japanese officers and leaders, including senior leaders of the government. And so there was at Nuremberg, and it has been criticized as, quote-unquote, victor's justice. And of course, there's an element of truth there. However, however, the goal, the goal of the Nuremberg Tribunals, the goal of the tribunals punishing

Japanese war criminals was to create a precedent to deter anybody from doing what Vladimir Putin is doing and from doing what Donald Trump threatened to do. That was part of the intention and purpose and the UN was created to try to reinforce that. But at the end of the day, if you are a great power, you will only be held to account if you go ahead and lose a war to the extent that Japan and Germany lost with, you know, occupation and the opportunity to literally seize the leaders. You know, we've seen some prosecutions of, for example, Serbian war criminals after the Balkan conflicts. They lost, they lost, and justice was imposed on them, rightfully so, but you're exactly right that this is not a situation.

Interpol does not have worldwide jurisdiction to serve war in. on world leaders. How, you know, Kim Jong-un rattles the nuclear saber, knock, knock, knock. I have a warrant here for Kim Jong-un. Wouldn't that be great? But no, that is not the way the world works. There is, but I would also note, with domestic law depends a lot on voluntary compliance. International law depends on it more, but domestic law depends a ton on voluntary compliance. Can I ask you a big question, but I don't want a big answer? Okay, I agree to your terms. Do you think the UN has outlived its usefulness, or like, whether practically or philosophically,

in an era where we have, you know, Putin invading Ukraine, America attacking Iran, like, isn't this what the UN was supposed to mediate? It's not. So as a practical matter, are we done with the UN? And so what's left of it is sort of this shell of an organization that's putting out reports that are pretty dumb. Or, you know, maybe the UN is at it, you know, the nadir of its power, perhaps, but it's still serving really important purposes, maybe purposes that we don't always see or talk about, but absolutely the UN is worth keeping and funding. It cannot work if

America goes rogue, period. If the most powerful country in the world goes rogue, it cannot work. The international system can work. It creaks, it creaks, it strains, it's leaky, but it has worked to avoid great power conflict since 1945. But since 1945, the world's greatest power, the United States, has not gone rogue. And so if you look at the five members of the Security Council, if Britain, France, and the United States are on the same page about maintaining international law, we have a chance to keep this thing together, not to keep the world at perfect peace, but to keep it from destroying itself like we almost did in World War II. If the world's greatest power goes rogue, the UN does not have any ability. It has an ability to issue

reports, to issue condemnations, et cetera, but it does not have any real tangible ability to impact world events. And so that's why. you know, you use the term that we've often used the term, the indispensable nation describing the U.S. and the global world order. We've sort of taken over from Great Britain in that way with the global reed, the power to reach anywhere in the world to some degree. If we go rogue, the U.N. is a, has nothing. It has nothing. But if we contribute our power and authority to the U.N. charter, it has teeth. All right. When we get back from break, we're going to talk about whether Justice Scalia would be rolling over in his grave after the Trump v. Barbara birthright citizenship argument.

In a moment. Hey, David, before we go to Scalia in his grave rolling around, having a dance party, two more quick questions on this. One, how does, this was a question from a listener. How does a service member actually assert Article 92 issues without risking being placed in the stockade, dishonorably discharged, pension disqualification, or, or other adverse career consequences. And please tell us what Article 92 is in your answer.

So Article 92 is failure to obey an order or regulation. It's very short. Any person subject of this chapter who violates or fails to obey any lawful general order or regulation, having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order, or is derelict in his performance of his duty, shall be punished as a court-martial. may direct. So this is a very common article of the Uniform Code of Military Justice that is used in a variety of ways to punish people who don't do, who don't follow their commander's orders.

But the key word there is lawful. So a defense to an Article 92 prosecution is that the lawful, the order isn't lawful. Well, then David, let me actually then add in our next question, because they're, they kind of are going to combine here in a way. The other question that we got is, And I think you've answered pieces of this before, but imagine, you know, a very senior ranking officer. And the president's like, hey, I want to attack Iran's stuff. And they're like, sir, that's a war without going to Congress who has the power to declare war. And that's unconstitutional. And so I refuse to follow that order versus a member of the service.

And the president, imagine the president gives the order to, you know, attack that. civilian bridge and that officer says, no, I will not attack that civilian bridge because that's a war crime. So add in those two hypos as you're about to answer this as well. That's unconstitutional war. That's a war crime. And I'm not going to follow either order. Perfect. Okay, I'm so glad you set it up like that because that's so crucial. The decision to go to war, the legal responsibility for that rests with what you would call the National Command Authority. That would be the president. we do not, we do not ask rank and file soldiers to determine whether the war itself is illegal. You don't grant rank and file soldiers, even officers, even general officers, the ability to say, well, I have determined that this war violates international law, so I'm not going to participate in it.

No, once the determination to go to war has been made, the legal responsibility for that, that's why if you see a war crimes indictment following a war, they're indicting the head of state or they're indicting the head of the, you know, the defense minister. They're not indicting every general, every colonel major. No, they, because it's just, you couldn't run a military. If you have two million people in the military and they're like, well, you know, I've Googled what is just war doctrine. And that is not, we're not in a just war, so I'm not participating. You, you couldn't run a military like that. So the decision to go to war, the legal responsibility rests with, You know, the best way to put it is like the National Command Authority. Once you are in war and you have been told, shoot the people who are swimming in the water who are shipwrecked, that's when the obligation, and here's the way it says that in the Department of Defense manual, of a law of arm conflict manual, orders to perform conduct that is clearly illegal.

And one of the examples for clearly illegal they use in the manual, and we've talked about this before, shooting sailors struggling in the water or orders that the subordinate knows in fact are illegal that is when you have the duty and so what that would mean is you know a lot of people are tracking on Twitter and who knows if they actually were but Twitter's a useless dumpster fire of real news and rumor at this point but just presume for the sake of argument that people were tracking a squad you know a fleet of B2s and B-52s heading across the ocean if one of those Cruz was given an order to bomb a piece of civilian infrastructure that they knew was not dual use, right? They knew it wasn't. It was purely civilian use. They would have an obligation to say no to that.

They would. Now, the problem you have in this situation, which is very scary for our republic, Sarah, is that always before a clearly illegal order would have been something more like my platoon's sergeant told me to threaten this Iraqi prisoner with death if he doesn't tell, you know, to put a gun to his head, if he doesn't give us the information he wants. And you get it, you, you go up the chain or you go around and you say, you ask the officer to reconsider respectfully, sir, I understand that's a legal violation. And if you persist, you try to go up the chain. There are processes and procedures to try to seek a reversal of an unlawful. order. It's sort of an action of last resort to just sort of flatly refuse. And then when, but in this

circumstance, what if it's the president of the freaking United States of America who's given the order? Who are you going around and over to? Who is the person that you can appeal to? Well, there isn't a person. There is an entity. It's Congress. Are B-52 crews going to be like riding their congressmen on the way to a bombing rate? I mean, it's absurd. So, This puts service members under maximum pressure, maximum, because they have zero really recourse. The only way to do what the law requires is to just go ahead and basically throw yourself into a court martial. That that is to just flat out refuse, to create a constitutional crisis where you actually have a member of the military refusing a presidential order. and the military refusing to carry out direct presidential orders.

It would be hard to describe a more grave constitutional crisis, but the law as written would require them to do this, which is why, and Sarah, I just can't say it enough. Character is destiny, guys. Character is destiny. And we did not realize how much we depended on the good character, even if presidents that we may have really disliked. liked to keep this whole machine running because, you know, I served under Bush and Obama. I voted

for Bush. I definitely did not vote for Obama. But when I was serving under Obama, there was no point that I was afraid that he was going to issue me or issue the soldiers I served with in order to commit a war crime. That was the furthest thing for my mind. It was also the furthest thing for my mind with George W. Bush. That was just not something to enter my calculus. And now we have it. Now we have it. we have crossed the Rubicon where we had a president actually threatening crimes against humanity with the expectation that Iran would believe that our military would carry it out. Otherwise, it's not a threat, right? Otherwise, it's just hot air.

It's just words. And so this is a remarkable moment, and it's occurring right after Pete Hexith has purged without any public explanation. I believe more than a dozen leading generals, including the heads of the JAG Corps and multiple services and the head of the Chaplain Corps. And what is the role of JAGs and chaplains in the United States military? Well, there are many functions, but one of the core functions of both is we work together with chaplains to protect the integrity of the military.

That is one of the core functions, the Chaplain Corps and the JAG Corps, as we protect the integrity of the military. And if you purge for unexplained reasons, the people, people who are in charge of that process and who are tasked with that charge, then you're creating an environment that says the real value is loyalty to the president. It is not loyalty to the Constitution, to the warrior ethos, to the soldiers creed, to the UCMJ. Again, it's just, I don't think the average person appreciates the pressure that was put on the United States military in that moment. And I would expect, Sarah, I don't know this for sure. I'm just going to

say, here's something that I predict. I predict in the weeks and months and years to follow, we're going to hear stories of fierce internal resistance to the Trump order, fierce internal resistance. And what you might find is that even to the point where many of the bombing raids that were going to be unleashed last night were actually not going to be unlawful, maybe the military had narrowed down the initial targets to legitimate targets. But I would expect that you will hear maybe, again, might be days, weeks, months, years, who knows, that the military was strongly advising Pete Hexeth and Donald Trump that what they had ordered was what they were contemplating was out of bounds. I don't know that. I just expect to hear that.

All right. We're moving to Trump versus Barbara, the birthright citizenship case. You know, at the oral argument, we heard a lot of quotes from the debates about the rhodical. of the 14th Amendment and individual senators and what they were saying and their expectations. Let me read one from Mr. Howard, Senator Howard in the Senate. This will not, this being the 14th Amendment. This will not, of course, include persons born in the United States who are foreigners, aliens who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons.

It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great disaduratum in the jurisprudence and legislation of the country. David, I have never used, said, or I think read the word disaduratum. I saw that quote pop up. At one point, I think, I was like, thank you, Elon Musk for your ridiculous algorithm because I've seen that quote 5,000 times. But here's the thing. There were lots of debates about the 14th Amendment and about exactly what the all persons born in the United States and subject to the jurisdiction thereof would mean. And you really saw the Solicitor General's office and the people in favor of the president's birthright citizenship executive order citing to these types of quotes.

This one in particular where, again, it says, like, it's not going to include foreigners, aliens, or families of ambassadors to. to shore up the idea that the purpose of the 14th Amendment, that the president's executive order is well in line with that. I don't really want to debate those quotes or what they mean or don't mean or whatever. I want to debate whether we look at the legislative history or the ratification history and the sort of history of the conservative movement, always saying that legislative history was not to be trusted. and yet that was always in tension with, sometimes contradictory too, depending on how you looked at it.

You know, the whole originalism thing. Like, what else are we doing? But go into the Federalist papers and talking about what the ratifiers thought the words meant by, you know, by looking at what they said they thought it meant. Okay, I want to read from Dylan Esper. He's a lawyer on Twitter, he said. So Mike Lee tweeted out this, that section of the debates. And Dylan Esper wrote, Scaliyah is turning in his grave as conservatives confuse the legislative history with the text. And he goes on to say, wow, a whole lot of conservatives simply have no idea what Scalia's position on legislative history was.

And this isn't a minor matter. Scalia convinced other conservative judges on it, and his view now commands a majority on the Supreme Court. And Dylan acknowledges, Scalia was a bit hypocritical on constitutional and constitutional and, interpretation, more so with respect to the Constitution and the Bill of Rights, not later provisions. But my point is, people are telling me things like, Scalia considered it whenever the text was ambiguous, which is just false. Scalia literally spent his entire career raging against legislative history and refusing to join opinions that used it. And he persuaded numerous people, including members of the current court. So no, this was his life's project, not a gotcha.

this, by the way, Dylan Esper, not like the biggest Scalia fan in the world. He's trying to point out what I think we've all, you know, been experiencing this idea that conservative judicial philosophy is evolving quite quickly as the two parties evolve as well and realign. Not in the same direction. It's just interesting that as the parties realign, the conservative legal movement is, and not realigning. evolving to, and it's why you saw in the argument over birthright citizenship, it was really the

anti-administration position to talk about, you know, text and sort of more of the originalist type arguments. And it was the pro-administration position to talk about purpose, legislative history, legislative intent. And David, I just wondered whether we should sing a few bars about why Scalia hated legislative history and why he inspired an entire generation like us to learn to hate legislative history, right? It was it was the idea that you're, you know, the drunk looking for his car keys underneath the street layup, or as Scalia put it, walking into a cocktail party, scanning the room and finding your friends. And that it could be manipulated so easily. Justice Barrett mentions this in her book that once senators started realizing that the court was looking to legislative

history, all of a sudden they started fabricating legislative history. Let's back up a minute, Sarah. This gets to a really, really, really important point about originalism. Okay, if you're a baby originalist, if you're somebody who's just heard of the term, you're going to use a phrase that is wrong. And it's a phrase, to be completely honest, I will occasionally lapse into. It will be a phrase that when I was a baby originalist, I used, and I was wrong. And it is original intent. Well, that was originalism 1.0, right? That was. was what originalists were talking about in the early 1980s. In 1985, I think you would have heard Ed Meese talk about that. It's really not until Scalia comes into his own realizes the problem

with original intent that you get to the Scalia era originalism 2.0 original public meaning. Public meaning. Yes. Yes. So in other words, intent is a psychoanalysis. You're diving in and you're saying, what did they mean really when they wrote those words? And that's where it gets manipulable. A senator can say, well, I, when I am voting for this, this is what I am voting for. And it could be a plausible reading of the words. It could be a non-plausible reading of the words, but it's an attempt to influence how the statute is interpreted in a way that is not obvious from the text.

And not what everyone agrees to vote for. They only agree to vote for the text. So if Bernie Sanders takes the floor and says, here's what I think this means and here's why I'm agreeing to vote for it, that's not proof of the meaning of the text. The text is the proof of the meaning of the text. That's the only thing that everyone agreed to. They didn't agree to Bernie Sanders floor speech or Ted Cruz is for that matter. Exactly. And so you're looking at the text and what does it mean for original public meaning? This is where we get into the history and tradition part of originalism, which is, okay, that's why they look at things like early court decisions, like legislatures who were responding to the constitutional amendment after it was passed, what they're looking at is how did people interpret those words at the time? In other words, how they were interpreted by contemporaries, not how they were conceived by the originators. And so that's a different thing. And so that's why it is so very difficult for those who are trying to overthrow birthright citizenship, because you have

this really long history of interpretation, really an unbroken history of meaning in the real world that is birthright citizenship. And they're trying to go back and take individual senators or individual politicians at the time who had, who said different things or ambiguous things and say, no, no, that's the original intent. But the problem you have is the public meaning, for those who are wanting to uphold the EO, the public meaning has been really clear for a really long time as that great Scotus blog video demonstrates. Like the video that we talked about a couple of weeks ago before the argument really shows the very long historical interpretation of that amendment.

And you're not going to be able to overturn that by putting it one senator out of, you know, I don't know, I can't remember off the top of my head how many senators we had. voting on the 14th Amendment. It wasn't 100. But one out of, you know, 60 senators, 70 senators does not define what the words mean. The words define what they mean. And to the extent there's ambiguity, you look at how they were interpreted in the relevant historical period, not how one senator thought about him when he was voting. David, we got another question about Barbara. You've mentioned that the Trump administration is careful to only appeal cases they think they have the likelihood of winning. But it also seems to me that their likelihood of winning this is pretty grim.

Why then do they want it heard? What do they stand to gain? David, I do think it's worth pointing out that when we're talking about the interim docket, the emergency docket, that's what we're really talking about the sort of strategic appeal question. And those decisions are largely getting made by the Solicitor General and a Solicitor General alone. when you're talking about a case like the birthright citizenship executive order, I don't think he got to make that decision by himself. And even if he did, you know, or even if he was advising the president, there is sort of this exception for the bigons. You know, like they had no choice but to appeal this one. This was an EO he did on his first day in office. So I agree it undermines

our point about strategic appeals, but I do think stuff like the Alien Enemies Act, birthright citizenship, when you're talking about the merits process, you kind of got to do, you kind of got to appeal your big EOs, because otherwise they're just gone. Like, if you don't appeal that, it's over. That's very different than the interim docket, where you're just letting the stay stay in place during the litigation because you don't want to lose that again and make bad law. But if it's just like, does this EO work or not, like, you've got to appeal it or else you're saying that the EO was pointless and unlawful. You know, we often talk about Trump's ideology and worldview and it's sort of a mistake to say that there is a coherent Trumpism. But there are

elements of Trump's project that have been coherent for years and years and years and years, and mainly around immigration and tariffs. So there's just no way that a Trump administration was going to capitulate on tariffs or birthrights. citizenship at the circuit court level. That was just not going to happen. They were going to go to the Supreme Court, and we're going to see exactly what we've seen, which is giant amounts of bluster and public pressure being put on the court to try to force them to yield. You know, we've seen just incredibly harsh rhetoric from Trump towards the judges that he himself nominated. There's an obvious public pressure campaign. And, you know, the thing is, in the Trump mind, it's always worked with

the Republican members of Congress is definitely going to work with these judges. who are my judges. And he's learning, and I don't think it's really sunk in fully, but he's learning slowly but surely that even, quote unquote, Trump judges are not the same people as Republican members of Congress, and they're not subject to the same bullying. And so, you know, I think in the sort of Trumpian mindset, you push everything as far as it can to see who will yield and who will give up. And that's going to be true in the legal system as well. When we get back, we're talking AI and the law after David French gave his AI rant. We've got listeners and they seem to be computer engineers and they think you're an idiot. We'll be right back. All right, David,

let's talk AI. Here's a question from a listener. I was struck by David's assertion that the individuals' corporations responsible for designing AI models would be legally responsible. for the results of the models. That assertion sounds strange to me because of the attenuated nature of the model's designers from the model's results. The designers of the model are designing a system that they themselves don't understand

and can't predict. The humans don't build the system. The humans build the computers that program the computers, that test the computers that result from the computers that build the system. The humans have no direct input and very little ability to guide what the computers do in building the system. The closest analogy I can give to the current

LLM systems is that we have put a group of toddlers with scissors and glue in a room with every picture encyclopedia ever written. There's no telling what they will make. The adult that put them in the room maybe should be put in prison for having made a poor decision, but the toddlers have been in the room for many years now and have been slicing and dicing without sufficient knowledge of rules, laws, societal norms, or meaningful input from adult humans. It has been as close to a real-life experiment with infinite monkeys typing on infinite keyboards as it is possible to get. It is neither predictable nor reversible. The legal system was not designed for the current reality, and I am by no means certain that it is capable of rising to the challenge of understanding it

with the speed necessary that it will demand. David, to quote Kanye, I'm going to let you answer, but just a sec. For me, what's interesting about that, I guess, is, like, yeah, if you just, like, created an LLM for your own purposes, I take your point about it being difficult legally to hold you responsible for the product of that LLM in some way, hypothetically. But when you put it out to the public to be sold for your own benefit, like commercially, and the fact that you don't know what the product will be, like, sort of ain't my problem. Like, once you commercially benefited, I think all of the tort laws kick in. And it doesn't matter that you don't

control the output because you created a thing and sold it. Right. It doesn't really matter what you created and sold. You made a widget. The fact that the widget is computers, programming computers and programming computers with toddlers and scissors and monkeys on keyboards, still a widget, right? I get exactly what he said. I do not claim to be an AI expert. There are people who and run circles around me. But I get the, what you're dealing with with AI as a different from say normal software is that it is supposed to do its own thing.

In other words, we've had this news about Anthropic and its mythos program and how it has created these like zero day exploits and don't ask me to explain all of this. I'm already out of my depth. But mythos, this anthropic project, did this quote unquote, on its own. Yikes, okay, that's scary stuff. And when I was around,

when I've been around top-end AI developers, they are very excited to see what their LLMs do. So in other words, they're curious. They don't know necessarily exactly at what pace and speed and all of this that you will see this model develop. But the problem is they're working within a legal environment where there is zero category for machine liability for harm. Is your LLM going to write a check to a... a person who was disrobed against their will by the AI in public. Is Claude writing that check? No, no, no.

Anthropic is writing that check. And so what I would say to the adults who've put the toddlers in the room, I want to equate you with a legal concept called Assumption of Risk. Okay. You can create your toddler community, but you're responsible for everything they do. imagine tell you know that's why kindergarten teachers have such tight control over their toddlers if in in many ways they're the ones responsible and just as someone who has a kindergartner i am stunned i think that the kindergarten teachers are stricter and have more control than the the teachers for some of the older students because if you let your focus lapse for a second those kids are running around like total lunatics yeah she's like a drill sergeant of there. I mean, think about the phases we've seen of GROC. Like we've seen Hitler GROC, we've seen porn GROC. All of that is on Twitter. It is on X or whatever XAI, whatever the corporate

entity. And guess what? They're human beings at the head of XAI. And if their LLM runs wild and harms human beings, they are going to be held liable for it, maybe even criminally. You might have somebody put in handcuffs for the thing that their, quote, LLM did. And so there's going to be this tension. If you're wanting to create maximum freedom for your LLM to do this and that and break through various barriers, et cetera, you're on the hook for it all. All of it. It is your responsibility.

You can't walk in front of a jury and say, don't blame me, blame Claude. and the cross-examination. Who owns Claude? Me? What was your salary last year? With bonus? Oh, I don't know. $250 million. How many private jets do you have? I mean, two or three. How much did your watch cost, dude? And so I'm sorry, guys, you cannot be king of the universe, billionaire AI, venture capitalist, developers, etc., and then go, well, look what that did. You can't. do it. You cannot. And so it's just, to me, they haven't thought this through fully. A couple weeks ago, Mr. French made a strong case for why he thinks AI companies who make tools which people can use to make morally reprehensible images with should be liable for the damages that their tools inflict. So my question is, if you change the prior sentence from AI companies to gun companies, does his argument change? Should gun companies be liable in the

same way that AI companies should. If not, what's the difference? Do AI companies need to come up with catchy equivalence to the phrase guns don't kill people, people kill people? So a gun is not an inherently illegal thing. A nude picture of a minor is. Okay. And so the, the creating that kind of content, that is inherently unlawful. The production of an AR-15 is not inherently unlawful. An AR-15 has countless legal uses. But David, that seems like the wrong analogy to plug in, right? Like the AI company created an LLM, the gun company created an AR-15. A user of the LLM told it to make that image, the user of the AR-15 shot up in elementary school. Isn't that the correct analogy? No. The analogy would be if a person who wanted to shoot up at an MLM

entry school asked Smith and Wesson to shoot the school and Smith and Wesson shot up the school. That's the analogy. Does it matter that Congress passed a law that gave gun manufacturers immunity from some of these questions? Like, it's not that they, that the AI companies need a catchy equivalent to the phrase, guns don't kill people, people kill people. Maybe they need a law from Congress on immunity for when you ask the LLM to make the naked image. Yeah, that would be the solution for an AI company is to be given some degree of legal immunity, which can you imagine how unpopular that would be, Sarah? If people are like losing their minds over data centers being built, if, you know,

one of the interesting things about AI is in many ways it's, I think you'd have to go back to the Industrial Revolution to find technologies more immediately polarizing than AI, which sort of is promising on the front end, like, hey, guys, a bunch of your jobs are about to go away. Welcome to the brand new, brave new world. That doesn't make people love what you're doing, right? It doesn't get people so excited about what you're doing. And so there is a, you know, I totally get it when I, the AI technology is mind blowing. And when I talk about it, I fully acknowledge I don't understand all of it. I really don't.

I truly don't. And it's quite plain to me that I'm not the only one who's in national politics and everything that doesn't understand it. I do understand the law. And I do understand that the conceptual vision of an AI as a quasi-independent entity isn't going to fly unless the law changes. So you've seen some efforts in that direction, such as trying to have federal moratoriums on state AI regulation.

These are things where the law is trying to. trying to respond to AI, but under present legal systems, Anthropic, Open AI, Google, Microsoft, Apple, they're absolutely going to be responsible for what their LLM does. And the amount of rope that they give their LLM is the amount of risk that they are assuming. And maybe I, let me just revise something in real time. I said they haven't thought this through. That's uncharitable. Perhaps they've thought this through and they're assuming the risk.

They're just doing it, you know, right? They've thoughtfully thought this through, but I will tell you a lot of AI boosters out there, AI fans out there I know have not thought this through. I'm not going to say that about the very smart lawyers at OpenAI and Google and all of those places. Like, I'm not going to say that about those guys. So let me issue an immediate revision and correction, Sarah. All right, David. We got this question about why we have a solicitor general of the United States that represents the executive branch

But we don't have anyone who represents Congress's prerogatives. Not really. And whether we need a congressional general or something or other. And I want to tackle that next week. But I also want to remind people that by the time you hear our next episode, last branch standing could be in your hands. Our Tuesday episode, all of your books that have been preordered should be delivered on Tuesday, April 14th. So get excited. I'm so grateful. I cannot express my gratitude to all of you that pre-ordered the book. And I hope all your book plates arrived. I've gotten lots of pictures of them. I'm sorry, my signature is that of like a 13-year-old boy who's, you know, has problems. I, you know, it's funny, David, I write with my right hand, but like a lefty. So it's a,

my handwriting's been a total disaster. They put me in remedial. handwriting in fourth grade and it didn't take. So apologies for that. But if you want to see where book tour events are, et cetera, it's at sarahisgir.com. If you haven't preordered your book, this is your last chance to get it on the day it drops. April 14th, I will tell you, I'm terrified, a little excited, but mostly terrified, if I'm being honest. It's scary. I mean, that's what they don't tell you when you write a book. This is going to be one of the most scary experiences professionally and anxiety inducing because there's nothing you do as a writer that you pour more effort and of your heart into than a book.

And it's like, I've heard people describe it. It's like my kid, you know, a professional version of like my kid. And you're putting it out there. This is my best effort. I really tried. I put everything into this. What do you think, world? and the two ways that the world can hurt you so badly is they write reviews that don't like it or they

don't care. And even in worse than that, it's like they don't care enough to notice it, right? The opposite of love is not hate. It is indifference. But the people are not indifferent to your book and the love is already coming in. And so I I feel like I totally understand the anxiety. I have felt it to the core of my being. but I want to reassure you that you shouldn't feel it. You've already succeeded, Sarah. So congratulations. Okay, David, that's it for us today.

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