View from a Former JAG: Our “National Emergency,” with Margaret Donovan

Welcome to Elawvate, the

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Ben Gideon and Rahul Ravipudi

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Hey, it's Ben.

Rahul and I started this podcast because

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Welcome to the Elawvate

Podcast. I'm Rahul Ravipudi.

And I'm Taylor Asen filling in for Ben.

I love this. Taylor, great

to see you. Happy New Year.

We got an upgrade as a co-host.

And.

This is fantastic.

We couldn't go much lower,

so it's nice to be here.

Ben has yet to show up in

the new year for a podcast.

He has yet to pay me on our bet.

Again with the 12 lobsters

coming our way. What's the deal?

He's actually litigating a case right

now. That's why he's not here. It's nice.

I'm taking over the podcasting

and he's doing some legal work,

so we're shaking things up.

I love it. I love it. I love it.

Well, it's great to see you. You.

Too.

How's everything going

over there in Maine?

It's good. We spent last week in Denver

at our strategic planning meeting,

which we do out there every year,

which is great. Went to the rodeo,

which was pretty unique experience.

It was great. I mean, I loved it,

but it was like being in another world

and Ben stayed till Saturday and got to

go to that amazing Broncos Bills

game, which I know broke your heart.

It broke mine too.

I just think Josh Allen is just such a

unique player and I love watching him,

but I felt sad for Bo Nicks too.

It's going to be, of course,

the groundwork has been laid for the

Patriots to just walk into the Super Bowl.

It's unreal.

As usual.

Yes. Nothing could be more

frustrating for me, but.

Sorry to bring it up.

Yeah, well,

we have the distinct privilege of

having Margaret Donovan here. Margaret,

thank you so much for joining us.

Oh my gosh, thank you for having me.

And I should add that I am from Buffalo,

New York, so I also had my

heart broken this past weekend.

It was very traumatic

for our family yet again,

but there's always next

year for the Buffalo Bills.

How did the whole family react?

Well, my four and 2-year-old were

unimpressed from the beginning to the end,

but my husband was despondent for

a few hours, but he's bounced back.

There's going to be another season,

but we will have a new

head coach it looks like.

I know. What's your reaction to that?

I just think it's really hard to be a

head coach. He turned around the team,

and I know it has been almost

a decade and no Super Bowl,

but Buffalo fans have gone many

decades without a Super Bowl,

so it's hard to look too poorly on what

he's done to for the team and for the

city, but I get it,

it's a business and people want specific

result in that type of business.

I'm on the fence on it too.

So I thought he was a really

good culture to the team

and really brought everybody together and

really hard in the NFL to do that with

all these strong personalities,

but they always seem to gel.

The thing about the NFL is it's not

like coaching in the NBA or it's

really running a huge corporation

and so much of what goes on we

can't see.

And so it's always hard to know what

is going on behind the scenes that

causes these breaks.

I know. Well, he was about

to be sainted in Buffalo,

so I think it'll be this bittersweet

for the city. Definitely.

Yeah. Well, so I realized, Margaret,

learning a little more about you,

that we have some overlap. I know you

now are working with Mike Wishney some,

right?

Oh yeah, of course, yes. Yeah.

My former mentor. So I'm interested

to hear sort of how you got here.

You've taken, it seems like a pretty

unusual route to plaintiff's work.

Can you tell us about that?

Yeah, yeah, it has been unusual,

but I will say I've never been more

certain than I'm in the exact place where

I'm supposed to be, not withstanding

sort of scenic route that I took.

I joined Costco after 12

years in government service.

So right after I graduated

college, I was an ROTC in college.

So I got a four year scholarship. I

went to college and started in 2004.

So if you can think back then,

we had just invaded Iraq and nobody

was really sure what was happening.

I remember my parents being really

nervous about me doing ROTC in college and

knowing that we had just

started, we didn't start them,

but we had just become involved in two

wars in Afghanistan and the invasion of

Iraq.

Are you from an Army family?

I'm not, no. I'm the only

one in my direct, I mean,

my grandfather was drafted

like everybody else,

but I'm the only one in my direct family.

And so I went to college knowing that

I was going to have this commitment

after. And then in college I

decided to go to law school,

which meant that when I left and actually

started my active duty assignment,

I would be in something

called the JAG Corps,

which is the Judge Advocate Generals

Corps, and it's basically army lawyers.

So graduating law school,

I did a year at an insurance

defense firm in New York,

just pretty much treading water until my

basic course started with the army and

then I joined the army and

it was just the most fun wild

adventure ever. I did six years in

the Army as an army jag officer,

and I spent half of it overseas.

My first assignment was in South Korea.

My first assignment was

in the Korean Peninsula,

and it was just an interesting place to

go after living in upstate New York and

New York City for so long.

Then I joined a unit called

the hundred first Airborne,

which is an infantry division,

and I deployed with them to Iraq.

And then that same time that I

was in Iraq, which was about 2016,

then President Barack Obama opened

up special forces positions to women.

And so prior to that policy

change positions within the

Army Special Forces Unit,

so the Green Berets that didn't actually

require you to go through special

forces training. So support positions

like a lawyer, like a doctor,

like the finance person

or their HR person.

The policy before President Obama was

that even if you don't even need to go

through special forces training,

we still just don't want women in those

positions. And it was silly because what

is the difference between male legal

advice and female legal advice when you're

talking about something like

airstrikes? So that policy changed,

and I took the opportunity to go to a

unit called Fifth Special Forces Group,

and that is also based in Fort Campbell,

Kentucky. And when I joined that group,

I was basically a lawyer for the

Green Berets and I deployed with them

to RACA Province in Syria in 2017.

And around the same time, my husband

had been working at Notre Dame,

he's an economics professor.

Around the same time my husband got a

job at Yale at the business school here.

And so I had kind of had

my adventure in Korea and

Iraq and Syria.

I deployed to Africa as well at

one point with the hundred first.

I had done a lot in six years and we

just decided let's find someplace to be

stationary. Yale is a really good job.

And we moved to Connecticut and we

didn't have any family nearby or anything

like that.

And the easiest transition for me out

of the military at that point was the

Department of Justice.

And so I joined the US Attorney's

Office right here in New Haven.

So my husband and I were finally living

together after being long distance for

so long, and I had this really

great job as a federal prosecutor.

So it was a very easy transition.

Before we get to that job,

can I just ask you a few silly

questions about the JAG Corps?

My wife is a lawyer and has

worked in house at companies,

and there's always sort of a

tension with the lawyers. I mean,

the people in the business side don't

always love the lawyers telling them what

they can and can't do. My guess is that

when you're dealing with special forces,

it's like that on steroids,

right? Is it a lot of saying no?

Oh, completely. Completely. I mean,

it's a very fine line to walk and I find

that a lot of lawyers JAG officers that

go to these special forces units.

You can take one of two tacks,

you can say no to everything.

I think the average person would be

shocked what the special forces do on a

daily basis, and that's not as if

they're doing anything illegal,

but these are really intense

operations that they're doing.

Or you can just integrate yourself as

much as possible within the unit so that

you're part of the planning phase and

you almost save your nose, so to speak,

so that you have more

credibility with them.

And it's not unlike being in-house counsel

or general counsel where if you play

your cards wrong,

you're not even at the table when they're

planning something and you're just

walking into a room after

this very serious operation

happened and asking people

what happened.

And so what I tried to do,

and I think what a lot of my mentors in

the JAG Corps advised me to do and did

themselves is integrate as

much as you can with the unit.

So that comes in the form of going to

the specialty schools that the units go

to. So for example, I became a paratrooper

and I became aero assault qualified,

which means you learn how

to repel out of helicopters.

I went to munitions courses to learn

about the difference munitions and the

different blast effects and collateral

damage that each of the munitions formed.

Some of it had tangential ions to being

an attorney and working in these combat

operations, but for the most

part it was just a way of saying,

I know what you're going

through. I did these schools too,

and I know that the type of training that

you have and that you should be given

some amount of deference commanders and

soldiers that you know what you're doing

in combat operations. And I'm not just

going to be the lawyer that shows up with

a notepad and a highlighter and saying,

you guys are doing everything wrong.

So the idea is to integrate as much as

possible. And even in Syria, I would try,

my commander would make a point to bring

me out to what's called the frontline,

the Forward Line of troops,

and just to see what it was like on the

ground because it's easy to sit in a

headquarters. And Baghdad,

I was mostly in just in a headquarters

through most of the deployment With the

green bets, it was different.

And so if you are just sort of sitting

in this safe contained area watching

things on drone feeds,

it's hard to really get a feel for

what the people on the ground are going

through unless you go out there. So

I've always been really strong advocate,

and I've taught this in

lectures at the law school here,

that you have to be as forward integrated

as possible if you want to be an

effective attorney.

I just had another question

about this. This is fascinating.

So when you're with the

Green Berets as the lawyer,

and I don't know if this

even is a distinguishment,

but are you a lawyer for the government

or are you trying to protect each of the

Green Berets from not getting court

marshaled or how does it work and do you

have an example?

Yeah, so there's different types of JAG

officers. And so when I was with them,

I was basically a lawyer for the

chain of command. So I was a captain,

so there would be other captains in the

unit that I would help with advice or

their legal reviews if they

were trying to, for example,

do something with our partner

forces that needed legal approval.

But at the end of the day, I

was supporting the command.

So if a soldier did something

where he or she got in trouble,

I would be the one advising the command

about how to prosecute that person.

So in those instances where a

soldier needs criminal defense,

basically they go to another

set of attorneys all within

the military called the

Trial Defense Services,

and those are basically the

public defenders of the military.

So they get somebody who doesn't

have a conflict of interest,

isn't talking to the

command and on one hand,

and then also sort of advising

these soldiers on the other.

It's so interesting. Just jumping back

to before you went into the Green Berets,

when you were at the JAG for six years,

did you prosecute any cases and then

give us an exciting story from one of

those?

Well, I did. I prosecuted a lot of

cases. So when I wasn't overseas,

I did mostly lethal operations. So I

was in something called a strike cell,

and I was giving advice on airstrikes

to, like I said, with the hundred first,

that was a regular army infantry division

in Iraq and then the Green Berets in

Syria. But when I was stateside,

I was a prosecutor. And so you do,

they're called court-martial and they

can be misdemeanor or felony level courts

martial and I did,

there's some pretty heinous cases.

We did some cases with child victims,

but then you have almost like run of

the mill cases called paper cases where

somebody is AWOL for a while and

then they get picked up on a DUI

or something somewhere and the

local police look and realize, oh,

this person has been AWOL from Fort

Campbell for 20 years. So they get shipped

back to Fort Campbell to get prosecuted.

And so you get some of those really odd

cases of somebody who deserted their

unit in 2003 and then all of a

sudden they were caught speeding and

they get picked up by local

cops and get sent back.

So I did a few of those paper cases,

but there were some pretty intense cases

involving child victims that stick out

to me. And a court martial

is an interesting animal.

It is basically a jury of your

peers, which if you are the accused,

it's the same thing as the defendant. If

you're the accused in a court martial,

you can go to a jury of your peers and

it has to be six members called a panel,

a jury basically, who are either

the same or higher rank than you.

And so in my experience,

I had mostly junior soldiers. I never

prosecuted an officer that was just luck

of the draw. Basically

when I was a prosecutor,

I didn't have any officers

in my unit get in trouble.

But you see these stories of

one star generals or high level

officers getting court marshaled.

And the funny thing about that every

time I see those stories is how they're

going to pick a panel because not only

do you have to have somebody who outranks

the officer,

if you're prosecuting famously a couple

of years ago there was a one star

commander at Fort Bragg who was

being prosecuted for sexual assault.

You have to find people who outrank that

person and who don't know that so that

there's no bias in the panel.

And so that's really hard.

The higher up you get in the ranks,

the court martial is just kind of a funny

entity and they can go either way. I

think probably the most

memorable case for me,

it was not that dramatic in terms of it

wasn't a violent crime or something like

that, but it was a guy

who refused to deploy.

And so it was a very military specific

offense called missed movement,

and it basically means the unit moved

operationally and you refused to go with

them. So I prosecuted him, and

again, it was not really at issue.

He was sitting there in the courtroom

instead of with his unit in Iraq.

So there was really no question

that he wasn't with his unit.

We just had to prove basically intent

and sort of play up some of the facts of

why he refused. And he

had a court martial panel.

I want to say this guy was a junior.

I don't think he was quite

a non-commissioned officer,

which is sort of a mid-level, I guess,

manager within the enlisted ranks.

I think he was more junior than that.

And the court-martial panel could go

either way because you have a bunch of

people who officers and enlisted

who might be sympathetic to,

for example, misconduct

when somebody is down range.

So if you prosecute somebody for

getting drunk on a deployment,

you may have a panel, a jury of

officers and enlisted who are like, eh,

that's not that bad. So

we'll find you guilty,

but we're going to give you a walk.

The other funny thing about court martials

is the panel can decide the sentence.

It's not the judge. So this guy,

I wasn't sure where the panel was

going to go because I thought, well,

maybe they will just be sympathetic

to him. I think he had family issues,

he was breaking up with his

girlfriend and he was really stressed,

but to this soldier's probably misfortune,

everybody on the panel had just gotten

back from a combat deployment in one way

or another. And so I think they were

all looking at the case and thinking,

absolutely not. There is

no tolerance for this.

There's this army cadence that you

sing sometimes when you're marching or

running and the words go, got a letter

in the mail, go to war, go to jail.

And so that became part of our closing

argument basically that we made on the

case that this is as basic as it

gets in the military. If you sign up,

you've got to go to war

when your country asks you.

And so I think the case ended

up maxing out on his punishment,

which is not always a positive

thing, but in this case,

I think the military just needed to send

a message. So it was a memorable case,

not because it was particularly difficult,

but it was just an interesting moment in

time of seeing how these sort of battle

hardened panel members were going

to react to somebody who basically

refused to follow orders.

Going back to something you said a few

minutes ago I thought was so interesting

about the soft things you did

to make sure that the folks

in your unit knew that you were

trying to understand their lives.

That seems like a skill and a mindset

that carries over so well to what we do

and what you do now.

It's hard because we all have so

many things we have to do every day,

and doing the sort of soft work

that doesn't achieve any short-term

goals is really hard, but it's

also so invaluable. I mean,

the time you spend with your client

where there's nothing to achieve except

spending time with them

and learning about them.

Going to their house, meeting their

family, meeting their friends,

just sort of understanding

what perspective they're

looking at the case from.

Yeah, you can't fake that. At least

I can't. Maybe better lawyers can,

but that's interesting.

I cut you off before you ended up

then spending six years as an AUSA.

Is that right?

Yeah. Then I became a federal prosecutor

and it was kind of a nice transition.

The military rules of evidence are almost

an exact mirror of the federal rules

of evidence.

The only difference was I wasn't wearing

a uniform anymore and I was in federal

court as opposed to a court

martial. I did that in Connecticut.

I focused on violent crimes and

narcotics. And right in the middle of it,

about three years after I joined January

6th happened and I prosecuted a few

cases. All of those prosecutions

were centralized in dc,

but just by virtue of being in a

national security position at the time,

I prosecuted a few search warrants

and arrest warrants of people who were

implicated out of Connecticut out of my

jurisdiction and basically sent them off

to DC to be prosecuted. And of course,

all of those people are currently

pardoned or forever pardoned.

So when are you heading to El

Salvador? Has your flight been booked?

Oh my gosh. I know. Seriously,

it's a pretty serious problem.

And it's funny that we're

doing this podcast on the

21st because I was thinking,

wow,

it was just a year ago when up came

down and the grass was blue and the

sky is green, and conspiracy theorists

basically took over the government.

So it's kind of shocking to

think where we are one year on.

Yeah,

we couldn't have imagined seeing Proud

Boys having some connection to our law

enforcement agencies.

But I guess I don't want

to overdramatize this,

but you've been a pretty outspoken

critic of this administration.

Good for you. I mean,

we all have things we understand and I

think we have a duty as lawyers to speak

out. So I applaud you for that.

Do you worry about potential

repercussions at all?

Does that crossed your mind?

Honestly, not really. I mean, I

feel like on one hand, I'm not that,

for lack of a better word,

I'm not that famous enough for the

administration to really care about me.

I'm trying to educate, I

guess my fellow citizens,

for lack of a better

term. What is happening?

I think what you're referencing is

since probably the past two months,

I've been doing a lot of media and it

started with a September 2nd strike on the

boat outside of Venezuela. And

I've also been doing a lot of,

I guess speaking out on what's going on

in the military and the Department of

Justice generally.

And I feel like it's just this

weird moment where everything

that I just talked about,

everything that I learned about

airstrikes and the law of war and how

military operations work and how you're

supposed to do it legally. Legally,

absolutely none of that has been relevant

in my life at all since I left the JAG

Corps. It's a fun thing to

talk about at dinner parties or

whatever,

but it's not really relevant that I know

how to do an airstrike that has never

come up in my civilian life.

And then all of a sudden this

boat campaign starts and I

realized that it's really only me and

maybe a handful of other people that have

done this amount of airstrikes.

And you have an administration that is

telling the public and convincing the

public that two plus two equals five.

And so myself and a

number of other we call,

were part of something called the former

JAGs Working Group decided we just

really need to get out and start

correcting the record on this.

So I'm not necessarily concerned about

myself. And I think, as you all know,

my firm has taken on a number of

cases against this administration.

I think we've got, I

don't have lost Track,

probably seven or eight cases where we

were suing the administration outright.

And so we've mostly, I

think, flown under the radar,

and that's largely due to the

administration like Pam Bondi,

DOJ can't find its way out

of a paper bag right now.

So I don't think that there's even

anybody connecting the dots on that,

but I'm not concerned about myself.

There's certainly other considerations.

We've seen law firms get targeted.

There's a lot of time left

in this administration,

so nobody's really sure where it's

going. But if the alternative is to.

We're just getting started.

Yes, exactly. I mean, the only

alternative though is to do nothing.

And so I think, and plaintiff's

firms in particular,

I was thinking about this

before we started this podcast.

Plaintiff's firms in particular seem

very well suited to this because first of

all, a lot of the law firms,

if they're not outright compromised

because they cut deals with the

administration or they're just

worried about being targeted by the

administration, they're sort

of out of the game right now,

which leaves a lot of mid-size

and boutique level firms to

be carrying the water.

And I can't tell you the amount of

lawyers from larger firms who I've been

talking with and who are like, how

is your firm okay with doing this?

Aren't you worried about

what if this goes to trial?

What if you get into discovery?

And I remember thinking,

my firm loves going to

trial. This is great.

Plaintiff firms are not afraid

at all of picking a fight,

and they're very good at building cases.

We're outsiders by nature, right?

Yes.

That's part of being a plaintiff's

lawyer is we throw rocks at the

establishment.

Yeah, exactly. So it's

actually, I think sort of small,

I don't know,

almost like intrepid plaintiff's

firms are very well suited to take on

these cases. They also, we don't have

the baggage of government contracts,

so there really isn't a whole

lot of leverage. And I say,

I'm going to knock on wood while I say

that there's not a whole lot of leverage

that the administration

could use to respond to us,

though I'm sure people

can get creative there.

So Margaret, just for our listeners,

can you share what your perspective is

on the administration and these strikes?

So why are they saying two plus two

equals five and how does it equal four?

Yeah. So beginning in September,

the Department of Defense has

been using military lethal

force against drug

traffickers in the Caribbean.

And so that means that it's been striking

people who are actually lower level,

not even cartel members most of

the time just cartel affiliates,

somebody who has taken maybe 500

bucks to transport a boat from A to B.

And as illegal operations go,

those boats are often mixed with other

things like maybe they're trafficking

humans, maybe they're moving

cocaine and marijuana.

So it's a combination of

how I got involved in this

is a combination both of my

experience with airstrikes, but

also as a federal prosecutor,

we did narcotics trafficking

investigations all the time.

That's like a bread and butter

case for a federal prosecutor.

And so as a federal

prosecutor that these people,

these drug mules often don't even get

prosecuted in the United States because

usually it's like I said,

just somebody who accepted a bunch of

cash to move drugs from A to B and doesn't

really have any insight into the larger

drug trafficking organization. In fact,

the very fact that they are sort of chosen

to make this transfer means that they

are expendable to the cartels. The

cartels don't care if they get arrested,

if they get killed along the way,

they're completely disposable

to cartel leadership.

And the best from the Department of

Justices sort of strategic perspective,

the best that you can usually get from

a drug mule is maybe intelligence on who

gave you the money or what phone are

they using or what's the leadership

structure as you know it for

this organization. So for years,

this type of thing had been dealt

with by the DEA and the Coast Guard.

And you would intercept these people

and release the mules back to their

countries, repatriate them and

destroy the drugs. Pete hug,

Seth just started killing

these people summarily.

Now I've heard some arguments that these

people are afforded due process and

blah, blah, blah. I mean,

that's not necessarily true.

They're not American citizens and

they're not within the United States of

America.

But you can't summarily kill people

overseas for something that is not armed

conflict. And so there's obviously

this moral problem with it.

But also legally, if you are not

actually engaged in hostilities,

then there is no legal basis domestic

or international to use military

force.

So what it amounts to is basically

summary killings of people that we would

never normally kill.

Legally.

What's the right way for the

United States to handle these

boats?

We are doing it the legal way,

which is the irony of all of this is that

the Coast Guard is still intercepting

people without using lethal

force and seizing the drugs.

It's just that Pete Hegseth finds one

once in a while that he wants to kill.

It's very similar to Bloodsport.

So they've just picked off certain boats

and decided these are the ones that

we're going to blow up.

And so that one of the most interesting

conversations that happened after,

I think it was Thanksgiving weekend that

we learned about the double tap strike.

Basically somebody was killed in the

very first boat strike of the operation.

There were survivors,

they were shipwrecked.

This is like textbook law of war doctrine

that you cannot fire on shipwrecked

survivors. You have a duty to

rescue them. And of course,

the Department of Defense

instead killed them.

And the most interesting conversation

that came of that was is this a war crime?

If we're not actually at war, we are

not in an armed conflict with cartels,

and it is horrific, but in my opinion,

it's actually just probably murder. Now,

it's interesting because the

administration says the opposite.

The administration has a legal opinion

that nobody has seen by the way.

But what we know of the legal opinion

from the Office of Legal Counsel and the

Department of Justice is that the

administration does view us as being in

hostilities with cartels, and that the

cartels are led by Nicholas Maduro,

who of course is a state actor. Now,

you will note the disconnect

there from when we conducted the

Madura capture operation

just after the New Year,

and the administration said we

weren't in an armed conflict,

and actually it was just a

domestic law enforcement operation,

and there's nothing to see here.

So the difference in how we are

treating lower level drug trafficking

mules, which is just killing them versus

the so-called leader of this massive

organized cartel organization is kind

of shocking. And you have to live with

a lot of dissonance in order to accept

that Maduro isn't even charged with

capital offenses. He will be tried

and most he could get life in prison.

But meanwhile,

these basically nobodies that

are supposedly under his control,

we are killing with lethal force. So when

I say two plus two doesn't equal five,

the administration can't just call

somebody a terrorist and claim that now

they're part of the war on terror.

That's like I've been telling everybody.

If you haven't read 1984, if you didn't

read it since you were in high school,

reread it.

Because that is a central theme of the

book that the government can just explain

to you what something is and claim that

a definition means something that it

doesn't. And an enemy is somebody

that previously they weren't,

but now we're calling them an enemy.

That is almost exactly what

this administration is doing

with the term terrorism

and just expecting people to fall in

line and agree that we can kill anybody

that we label that.

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and learn from the best.

Margaret, let me ask you a question,

and maybe this will sound Pollyannish

people of at least I think my

political persuasion are horrified

when I say something like this,

but I actually think maybe it's an

even darker point than people realize.

But I think if you took all

of the possible simulations

of this presidency and

what could have happened,

right? Worst case scenarios,

I don't think we're at

a worst case scenario.

And the evidence for that

would be like take the case.

You guys did the Zaid case and I

love to have you talk about that.

But one thing that's kind of surprised

me pleasantly is the administration seems

to be listening to judges

more than I feared they would.

And actually that makes me think maybe

there are people in this administration

who are quietly trying to push the

administration in the right direction.

I think I saw today that Lindsay Halligan,

is that her name that you as

attorney, she stepped down, right?

Oh yeah. She stepped down and there was.

A while there that it looked

like they were just going to say,

fuck you basically, right? We're

going to do whatever we want.

Don't you think this could be much worse?

And maybe they will at some point that

the administration just says We're not

going to listen to judges anymore.

I think it could be,

absolutely, could be worse.

And I shudder to think about how much

worse. But I think you're right. We see,

for example, Mark's aid, they

turned his clearances back on.

The judge told the agencies to reinstate

his clearance and he attended a

classified briefing last week. So

they are complying with court orders,

and there's been a lot of discussion

about whether there's going to be a

constitutional crisis when and if the

administration decides to defy a court

order. And we've seen them tow the

line on that a few times. But to me,

I think two things.

One is that when you see something

like Lindsay Halligan stepping down,

it could be because they are deciding to

adhere to the rule of law and follow a

court order, but it could

also because it was really,

really embarrassing for the administration

to have that person in that position.

So I think that there's some element of

actually you just look like morons by

putting these people here,

and you, like I said,

could not prosecute your way out of a

paper bag with this person in line and

most of the public even sees through

that. So that's the first thing.

The second thing is

that I have been saying,

especially since when looking at the

boat strikes and what's going on with

Greenland and sort of our

foreign policy generally,

I don't think that the administration

needs to defy the courts because there

already is a constitutional crisis that

they're leveraging and that is the clash

between the legislature

and the executive branch.

So the legislature is

completely out of the game.

And Article one no longer means anything.

There is no any teeth that Congress

have, they're not using it.

Any muscle that they have,

they're not flexing it. So

the administration doesn't

really need to defy court

orders. Basically,

if they can act in ways that can never

be brought in court in the first place,

they know they're not getting impeached

and they can act with impunity.

So I think that there isn't

really on these cases,

they can sort of pick their battles and

say, okay, fine, we'll give Mark's aid,

his security clearance back.

But the larger fight of are

we going to go take Greenland,

nobody has standing to

challenge that in court.

Nobody's going to bring a lawsuit to

enforce Congress's ratification of nato.

They should,

but I think the administration can

get away with a lot by taking actions

for which nobody has

standing to sue in court.

That's where they can sort get the

furthest away from constitutional norms

without being reigned in by somebody.

I got a separate question, Margaret. Okay.

Senator Kelly said,

don't follow illegal orders

or words to that effect.

And then the administration is taking

away his privileges and then he's suing

back.

What's your take on the comments

and what's right and wrong here?

Oh, I love it. I love

Senator Kelly's suit.

I know that his attorneys

who are on it, they're great.

There's a former JAG on his trial team.

So I think that it's

just the perfect case.

Senator Kelly and these

five other lawmakers made

this video in early November

about not filing unlawful orders,

reminding the military to basically hold

the line and the administration lost

its mind,

which is something that you would only

do if you were hoping that people would

follow unlawful orders.

There's absolutely nothing

controversial about what he said,

and he is being targeted by the

administration. Administration, of course,

the basic First Amendment

free speech aspect to this.

But there's this other part of

this, the speech and debate clause,

and this idea that Senator Kelly is a

legislator who was elected by his people

to say things like this and to represent,

to stand up to the administration

in ways like he has done. And so

the use of the executive branch to try

to silence the legislator is what makes

this case more notable than all of the

other attacks on free speech that this

administration has done.

So he filed a lawsuit in,

I think they filed in DDC and the

District of Columbia District Court.

I mean,

I think that the administration is going

to have a very hard time defending any

of this.

The Pete Hegseth tried to issue what's

called a letter of censure against

Senator Kelly, and he tried to

basically reduce Senator Kelly's.

When you're retired, when

you retire from the military,

you continue to draw pay and

benefits based on your retirement.

But because of that,

there's this nuance in the law that says

that you're still technically subject

to the Uniform Code of

Military Justice, the UCMJ,

which is the military penal

law. So when you're a retiree,

you can technically be called back

onto active duty if you have committed

misconduct under the UCMJ. It almost

never happens because first of all,

if you're a retiree,

you're probably not in the age of

your life where you're committing ous

misconduct,

but even if you were the state or the

feds can deal with it before the military

can,

and it's a lot more economical for them

to do that than to haul somebody back on

active duty in court martial them.

So what happened with Senator Kelly is

they did not pursue UCMJ because they

could not because there

is no criminal offense,

but they instead issued what's called

a letter of censure and they are

attempting to reduce him in rank, but

the law on that particular outcome,

that adverse action is so clear that

your retirement rank is based on your

service record,

which should be common sense

that it's a pretty logical

rule. So that means that if you

wanted to reduce somebody in rank,

you have to find something that happened

during their time in service and reduce

them based on that. You can't reduce

somebody in rank after they've already

retired. So as one of my colleagues

said, who's commented on this a lot,

that case is dead on arrival. There is

no way that the administration could win.

The law is completely

black on white on it,

which leaves you to wonder why are they

even pursuing that in the first place.

And the answer that most people have come

up with is because they're just trying

to intimidate people, they're

trying to threaten them.

And what Senator Kelly is doing is

saying, I'm not going to be scared by you,

and Senator Kelly's service record is

probably as good as anybody else who's

served in the armed forces

and other public service.

So he's not somebody who's

going to be threatened by this.

And I think his lawsuit is pretty

bulletproof and looking forward to

watching that play out.

So what's your take on how the

Supreme Court takes all of these

Trump crazy moves and then somehow

rationalizes at least some of 'em?

And then is there any concern with

the Senator Kelly issue that slammed

dunk, no brainer somehow ends up

in front of the Supreme Court?

Who knows what happens?

Well,

I think the only way it would end up

in front of the Supreme Court is if the

administration puts it on

an emergency docket somehow.

So he's asked for a temporary

restraining order and an injunction.

So it is possible if a court rules in his

way that the government could say that

there's in a national emergency

based need for the administration to

pursue this, but that is

completely undercut by the facts.

But you're right to be concerned

about that because we have seen this

administration on emergency

so-called emergency powers for the

past year to try to get its case

held and ruled favorably on by the

Supreme Court in what's

called the Shadow docket.

So basically something happens

at the district court level,

the government claims that this ruling

against them is going to be a threat to

the president's national

security authorities,

or there's otherwise an emergency that

the executive branch needs to respond to.

It goes all the way up to the Supreme

Court and the Supreme Court issues a

ruling basically saying that they're

not going to ever challenge the

idea that the president can

determine whether or not there's an

emergency or they don't want to intrude

on these national security authorities.

And then they send the case back

down ruling for the president,

but not giving any legal

analysis on the actual case.

So it's been extremely unhelpful to the

lower courts and it's created basically

a really jarbled mess of a

lot of different cases and

different sort of streams

of actions.

So I think a lot of people's problem

with what the Supreme Court is doing is

that although there is a deference to the

executive branch on issues of national

security and national emergencies,

it is not an infallible determination.

It doesn't mean that the executive branch

can't be wrong sometimes it just means

that they get the benefit of the doubt.

And the Supreme Court has basically been

treating that as infallibility.

And the idea is that the Supreme

Court is looking at this from the

perspective of all presidents. So

they're trying not to tailor opinions.

And I'll play devil's

advocate for a second here.

They're trying not to tailor their opinion

just to President Trump because that

means that the next president comes in

that decides that something's a national

emergency,

that some activist group doesn't want

to be a national emergency that could

curtail that next executive. So

I understand that perspective,

but I think when you have

something, for example,

deploying the National Guard to Portland

when in fact there is no riot and

no emergency, or in Minnesota if we

were to invoke the Insurrection Act,

the facts on the ground are simply

completely untethered to that

determination.

And I think a judge has used that exact

phrase in determining that. So it's

difficult to watch the

Supreme Court do that when,

I'll try to think of an example, but

basically if you were allowed to,

there was a law that said you can invoke

the Insurrection Act if it's really

rainy out and the President decides

to invoke it on a day that it is

sunny and bright and 70 degrees and

somebody appeals that the Supreme Court in

that situation would say, well president's

to decide whether or not it's rainy,

and we don't want to block in any former

president from determining that it's

not rainy enough or that

it's too rainy. Meanwhile,

the rest of us are looking around and

saying it wasn't raining, it was sunny.

So why can you flip the facts on that

and why are we just accepting what the

President said to be true?

So I guess there's a lot of frustration

with the amount of deference being given

to the executive and that

that's not balanced with

looking a court being allowed

and I think required to look at the

facts on the ground of what's actually

happening.

Margaret,

I wanted to ask you a larger

question is sort of what topics

having to do with this administration

you think plaintiff's lawyers should be

focusing on? But a sub-question

of that has to do with ice.

ICE has sort of come to Maine

in a big way over the last week.

And so it's on the top of my

mind. I know that in California,

a movement have a state cause of action,

which I have no idea if it seems like it

should be preempted. But in any event,

if there are arrests of people or

detainment of people where there's

no people are detained who should not be,

those people can bring

civil rights claims.

They can, but it's a

very tough hill to climb.

So not contrary to what JD Vance has said,

ICE does not have absolute immunity.

They have something

called qualified immunity.

And we're dealing with this

actually in a few cases,

and I think most plaintiff's lawyers who

do government litigation probably are

familiar with this,

but it's a very high standard to try

to prove that somebody was acting

completely outside of any discretion that

they might've had to do something and

when an ice officer is doing what

would otherwise be a routine arrest,

but they had an innocent,

and I use that word,

but sort of a good faith mistake

of who they were detaining,

they're not going to be held

civilly liable for that.

So I think that is difficult. But

you are right that states are,

I think Minnesota was thinking about

this as well. States are beginning to try

to create civil actions that

they could use supposedly to

enforce civil liability

against officers that do that.

I think the answer unfortunately

has to come from Congress.

I know our Senator

Blumenthal and Connecticut is

introducing legislation that

would basically codify the

right for people to sue ICE if

their rights have been violated and

sort of open up a hole in this qualified

immunity doctrine. But it is odd,

and something that you just said just

stuck with me about ICE is coming to Maine

because I had this conversation with

my babysitter just yesterday who was

kind of upset because somebody

that she loved may be involved in

this, maybe become a target.

And my response to her was,

ICE isn't really here in Connecticut,

it's happening in Minnesota,

it's happening in other places,

but we haven't seen a whole lot of

activity here. This surge and the focus of

federal assets right

now is in Minneapolis,

and one of the sort of dark benefits to

that is that there's not enough people

to cover the rest of the country. But

as I heard myself explaining that,

I was just thinking how screwed up

that is. That's like saying, well,

we're not in a hostile territory

yet. Other places are bad,

but we're still safe. We're in a safe

zone. And that is such a bizarre thing.

I mean, that's something that I would

say a little extreme comparison,

but that's something that I would say

in Iraq or Syria, I would be like, yeah,

we're in the green zone here in

Baghdad. We're not in host territory.

I'm not at that same level of hostilities,

but it is an odd thing to be describing

to somebody that our region is still

safe, but it's probably coming

in the next couple of years.

Nobody in Maine I think

really knows what's going on.

But then a lot of rumors and

Lewiston, which is where our firm is,

we're right next door, has a large

population of African refugees,

and it's been like a ghost town.

And the schools in Portland,

which have a lot of African folks, I

mean people aren't going to school.

It's like it sort of does remind

you of a war torn country.

It's really sad.

Yeah. And one year ago,

one of the first executive orders that

was signed and one of the first policies

that the Department of Homeland Security

issued was that they are no longer

abiding by the Sensitive Locations policy,

which was saying to your point that ICE

will not interrupt a school classroom

or church or a hospital.

The idea for years had been that

you can do enforcement operations,

but some places are still in the case

of church is literally sacred and that

policy is gone now.

And so you see that the

fallout from that in

empty stores and empty schools and

empty churches. And you're right,

it's not the America that we remember and

it's not the America that I think most

people want.

Do you see places where those of us

who I think probably a lot of our

listeners really admire the work,

we haven't even got into that work

you've done are doing on behalf of FBI

officers who were discharged

for ridiculous reasons.

And is there work that you would

encourage people who have the skills of

our listeners to look at?

Yeah, there is. It's kind of broad,

but basically I would say any

skill set that you have to litigate

things in federal court

or to build a case.

And so this is mostly

plaintiff's attorneys,

but I mean anybody who knows how to

bring a case needs to be putting those

skills to work. In my mind, it may not

feel like it because it's so slow moving,

but I firmly believe that we are in the

middle of a national emergency and you

can still go to school and go to the

grocery store and talk to your friends and

go out to the bar. So maybe it

doesn't feel like that every day,

but I really believe that we're in one.

And so I would just say that lawyers

should be comfortable going outside their

skillset.

We have partners at my firm doing helping

with habeas petitions for immigration

cases. It really just means that

everybody needs to contribute in some way,

even if it's a little bit

outside of your comfort zone,

just figure out a way to put your skills

to work because it's the lawyers and

the media.

Those are sort of the two last stands

right now in terms of holding everything

together.

Thank you, Margaret Taylor,

I hope you agree with this.

I don't feel like we've even scratched

the surface with Margaret and we've got

to have you come back. So

we're out of time for today,

but I want you so much for joining us.

Yeah, it was fantastic.

Thank you very much.

Yeah, thanks for having me.

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