Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
David Kurtz: Hey, Greg, good to be with you.
Kurtz: Yeah, so there were a bunch of problems with both of these prosecutions, all stemming from the fact that they’re politically motivated and driven by the White House and that we no longer have an independent justice department. But the threshold issue before they got to all the other problems with the prosecution was whether Lindsey Halligan had been properly appointed in the first place. And the judge looked at the statutory record, looked at the appointments clause in the constitution, looked at past history and practice and found it was clear that the Trump administration had exceeded its authority.
Kurtz: Yeah, so there’s two things going on here. One, it wasn’t just career prosecutors who thought there weren’t cases here, but it was his own picks, the interim U.S. attorney who was already in position and who was also Trump’s nominee for the permanent position. He refused to go along with it. Trump had him removed, put Lindsey Halligan in his place. So that’s part one.
So it all goes back to, as you say, the corrupt intent from the get-go to use the Justice Department as a weapon and his clearly stated willingness to do whatever it takes to see these investigations become indictments so that he can use these for political purposes.
Kurtz: That’s right. She was an insurance lawyer for most of her legal career. She defended Trump a little bit in the criminal cases, but before this role had no experience. And so the judge today ruled that the indictments were void, that none of her acts as U.S. attorney were valid. And I should add that the Justice Department, Attorney General Pam Bondi in particular, took these great efforts to try to ratify what Halligan had done once this became an issue. So after the fact, I’m going to try to retroactively bless everything she did in a way that makes it copacetic. And the judge today rejected that as insufficient, incomplete, and beyond Bondi’s power to do.
Karoline Leavitt (voiceover): We believe the attorney in this case, Lindsey Halligan, is not only extremely qualified for this position, but she was in fact legally appointed. And I know the Department of Justice will be appealing this in very short order. So maybe James Comey should pump the brakes on his victory lap.
Kurtz: What comes next is interesting. So this is the third decision like this, slightly different facts in each case. But judges in New Jersey found that the U.S. attorney there was not properly appointed and the same thing happened in Nevada. I think each of these is going to likely go up on appeal and we’ll get a firmer sense from appeals courts whether the statutory scheme will withstand scrutiny and can be abused in the way that it’s been abused. Of all the things that we’ve seen, you can’t ever guess how these court decisions are going to come out. This one feels like this has been the practice for a long time. Everybody knows how this is supposed to work. Their proposal, as Judge Currie said today, would basically allow anyone to walk in and be a U.S. attorney and they get blessed after the fact by Bondi or let the President just continually, perpetually appoint interims and never have to get Senate approval or confirmation. So I don’t think that’s going to stand much scrutiny, but I hate to predict, and it depends on the panel, depends on the appeals court, et cetera.
Kurtz: We’re so far off the rails on this, it’s hard to even know where to start. But let me start here. Pete Hegseth came into office, came to fame really in right-wing circles as someone who is deeply skeptical of war crimes, deeply skeptical of the legal restraints that had been placed on the military during the global war on terror. He saw them as being handcuffed in Afghanistan and in Iraq. So he comes to this with a strong bias against any sort of legal limitations on military conduct. So that’s the first thing.
Which I think ignores a third thing, if I can just finish up real quick, which is that the military has been trained for almost 50 years now, since the end of Vietnam War, in the limits of lawful orders and the obligation they have not to follow unlawful orders. This is part of their training, this is part of their culture. This is part of the ethos that has been baked into the military, or tried to be baked in the military, since things like My Lai during the Vietnam War.
Sargent: Well, Donald Trump came in over the weekend and exploded in fury at these Democrats over this video. He said, “the traitors that told the military to disobey my orders should be in jail right now. It was sedition at the highest level.” Now that’s nonsense. What the Democrats actually said in the video is that officials are not obliged to obey illegal orders. They were just stating what, as you said before, has become convention for the military and for members of the military, something that they’re all supposed to know in their bones. And by the way, there’s lots and lots of evidence. We detailed it at TNR.com. You can go check that out, that Trump actually has been giving illegal orders, such as with the boat bombing in the Caribbean Sea. There are actually people inside the military have objected to the legality of that, at least one lawyer has. Yet you’ve got Trump raging all weekend about this, amplifying all these attacks on Dems. So here, tell him why you’re so alarmed, David. The investigation of Kelly is kind of another level of corrupt weaponizing of the law against a critic, right?
And so you’ve had the combatant commander in that region retire very early from a term that would have lasted several more years. You’ve had, as you suggest, reports that lawyers within the chain of command—at least one—has raised objections. The other thing I would note is each time the Pentagon has denied that lawyers have raised exceptions, they’ve included some sort of wiggle language about lawyers who know about the operation or lawyers involved in the operation. So there’s a caveat that they are, I think, keeping the number of eyes who are evaluating this and assessing this very limited so that they can plausibly say that it’s been blessed.
Sargent: Well, I just want to add to what you said there. The commander who was overseeing these bombings stepped down, as you mentioned. I want to add that there was no public explanation, either from him or from the Pentagon, explaining the resignation. And on top of that, we had Representative Adam Smith, who’s the ranking Democrat on the House Armed Services Committee, on this show here. And he told us that he was trying to get this Admiral Alvin Holsey, is his name. He was trying to get Holsey to sit down with the Committee to say whether he feared he was being given illegal orders. The Pentagon, he says, wouldn’t allow that, and Republicans on the House Armed Services Committee aren’t pushing for it. So it’s not as if we couldn’t get to the bottom of this if we wanted to. If we had a functional Congress, you would hear from this Admiral. You’d be able to ask him under oath, did you fear you were being given illegal orders, right?
Sargent: David, let me just throw out there on that, that when this is being debated, whether we’re going to war in Venezuela, it’s almost an afterthought that he doesn’t have the authority to do that. We don’t even discuss that anymore. The bombings themselves are clearly illegal. Congress hasn’t authorized those. But now he’s talking about an invasion of Venezuela, essentially, and nobody ever talks about the fact that that requires congressional authorization. So the whole Overton window has really swung in a pretty alarming way.
Sargent: Well, let’s step back a bit. It seems to me the big story here is that this sort of explicit and openly advertised corruption of the system is itself an essential feature of Trump slash MAGA politics. Trump’s appeal is that he’s making no bones about corrupting the system for these purposes, but it looks like that part is backfiring for him because it’s the ham-handed and deliberate nature of this that’s working against them. You mentioned the post-Vietnam period, I think in a very large sense. The ’60s and ’70s, the Watergate scandal, the Vietnam War travesties, all that stuff really led people to rethink Congress and rethink our system in really fundamental ways, leading to a bunch of norms and laws and rules that are supposed to be in place now, but on all these fronts, all that’s getting wiped away. What do you think of that, David?
Sargent: Where do you think this all ends up? I think it’s pretty likely that these prosecutions end up failing. I also think it’s somewhat likely that we end up at war with no congressional authorization. Karoline Leavitt just said the bombings are going to continue. Those are going to continue. Those are deeply illegal. Are you optimistic or pessimistic about the big picture rule of law surviving into coming years?
Sargent: Well, that’s what happened after Vietnam and after Watergate—it was a big shift in thinking, and it led to a bunch of reforms. Do you think that could happen again?
Sargent: Folks, if you enjoyed this conversation, check out David Kurtz’s newsletter over at Talking Points Memo. He covers this stuff in granular detail, but also with an eye on the big picture. And the big picture is pretty damn ugly. David, always great to talk to you, even if it’s pretty grim right now.
Kurtz: Yeah, thanks for having me, Greg. I appreciate it.
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