Is Trump Committing War Crimes? Lawrence Douglas on Hegseth, Nuremberg, and the Criminal State

Welcome to The Oath and The Office podcast.

“I am John Fugel saying in this week's episode of The Constitution is fine until it applies to me.”

Donald Trump decided the 14th Amendment to your constitution is basically optional. You know, it's like a hotel mini bar charge, you just have to dispute loudly enough. So please welcome the star of our show, the author of The Oath and The Oath in the Office. Professor Corey Brechneider, Professor, it's good to see you. Thanks so much, John. What a pleasure to speak with you despite the attack on our democracy.

That's just getting worse and worse. And there is some hope in that birthright citizenship case that we'll talk about. The Supreme Court did push back. We'll go in depth on that. But of course today, the president really is threatening war crimes, explicitly on Trude Social. And we happen to have a guest with us, Lawrence Douglas, who's going to talk about the history of war crimes and try to help us to use history and the idea of international law to get a grip on what's happening.

It's frightening, but I'm glad to be having this conversation with you and with our guests and to be working through this true crisis that we're living through together. Yeah, me too. What an Easter basket to get on that morning. I mean, I'm very glad Professor Douglas is joining us. His book is called The Criminal States, War, atrocity and the dream of international justice and what convenient booking the same week our president decides to start

threatening war crimes and genocide via public post on Easter Sunday morning. My God. And I want to remind everyone, we love to get your letters here. Any questions or comments or

threats you have about constitutional law and please subscribe to the podcast. We always say that

the end, but let's say at this time, if you if you like us, if you if you learn a lot from Cory, like I do, that'll help you cheat on your bar exam. Subscribe us and share with your friends. Professor, I got to talk to you about what's going on here with the 14th Amendment case, because for this president, birthright citizenship adds to brown for him. Equal protection does sound expensive due process, not for everybody. And the 14th Amendment, which I've learned so much

about from you, written after the Civil War to ensure that citizenship couldn't be decided by the state's based on race. It's now being treated like a clerical era, somebody forgot to fix and last week and a move no president has ever tried before. Racist man, baby, shows up to watch his own case at the Supreme Court. And I guess intimidate the justice as he believed O allegiance to him over a piece of paper. And I don't know what you thought of this Cory to me. This was like the scene in Godfather

too when Frankie Pintangeles about the testified of Congress, but Tom Hayden brings in his brother

“from the old country and Frankie Pintangeles backs down in his testimony. I think that's what Trump”

wanted it to be. He was presumably thinking this is like the apprentice. Laring at people with hate makes them agree with you, but in case you folks haven't heard, it did not. Let's talk about the case last week. It sounded like even the Conservatives were skeptical Cory. What constitutional principle is really a stake here? Well, before we talk about the Constitution and the moment in court, I mean, I love the Godfather. I just rewatched it. I watched the offer, the TV series about the

making of the Godfather. So that is very much on my mind. And what a great description of what

happened in your member with Frankie Pintangeles brother comes in. Never said so much. And Michael V.

Gazo backs down. This committee owes an apology, Senator. This committee owes an apology, Senator. I mean, power shift of thinking that, you know, here, he was going to turn on, on, well, I don't know what the exact parallel is, but that he was going to turn on the dawn and, you know, tell the truth and then all of a sudden find himself completely intimidated. I imagine

“that's how Trump must have felt that he came in thinking he's, you know, in charge and, you know,”

being kind of loose and as he watched this, I don't know how much he followed, but he certainly followed enough to show and he freaked out about it, of course, later, that these weren't his justices by any means and that the thing he had done, which was issue an executive order, essentially trying to revoke the 14th Amendment. We will talk more about that. Wasn't going to fly. There's no way that this Supreme Court usually, often it's very hard to

tell exactly how the case is going to come out. They're asking a variety of questions. This was a review and not just from the liberal justices, from Justice Barrett, certainly from Justice Roberts, they were really letting him know Justice Gorsuch as well that this wasn't a hard case and, you know, I have to say I personally felt vindicated. I've talked on this show about why I don't really think this is a debate and then I was, I've been asked to debate, for instance,

defenders of this executive order as constitutional on mainstream media and what I've always said

14th Amendment couldn't be clearer when it said that if you were born in the United States,

you are a citizen. Now it does use this phrase subject to the jurisdiction thereof, but the Justice has made it so clear that what was going on in the argument of the Trump administration saying that somehow this was consistent with revocation of birthright citizenship, was not going to fly. And so they were essentially saying what I've been saying. There is not a real debate here. There is instead an administration that is trying to do nothing

less than through executive order, change a constitution that we fought a civil war over. Mm-hmm. Yeah. I mean, there is no debate. The 14th Amendment says all persons born in the US are citizens and this reality show performers position is essentially yes, but what if we just

“didn't mean that? And I think that's really, that's the extent of his legal argument. So I”

want to talk a bit about the back and forth because it was remarkable. I've said to you many times, I think John Roberts is a filthy aristocrat who is one of the few Republicans who actually has his eye on his place in history and can see beyond next week. And John Roberts really cares a lot about cultivating this image of a principal jurist who isn't afraid to upset his own site. He's an aristocrat and everything he does is for himself. But it was remarkable watching

this sad-sax illicit or general sour trying to make the point that let me quote him directly,

"We're in a new world where 8 billion people are one plain right away from having a child who's a

US citizen." And then John Roberts just calmly reminds everybody, it's a new world. It's the same constitution. What did you hear in that line, Corey? Was that a rejection of the whole idea that political pressure can reshape constitutional meaning? You know, the constitution didn't just change

“because your boss is mad at it. I think that's what he was trying to say.”

Yeah, it's a great summary, John, and what's going on. I mean, I have to emphasize part of the context here too, which is that this Supreme Court, the Conservatives in particular, regard themselves as originalists or textualists. In other words, that the words mean what they meant in the 19th century when they were written into the constitution and in particular ratifying. And, you know, sometimes the constitution's ambiguous, but here it couldn't be clearer.

There was a possibility and they could have done this certainly that formally enslaved people and their children might have been granted citizenship in order to narrowly reverse the dread Scott case that essentially said black Americans aren't even people, legal people, legal persons under the constitution. But they opted for something very different. And a much broader protection of everybody born in the United States. And yes, they used the phrase

subject to the jurisdiction. But as Roberts and others pointed out, calling by the way, the solicitor general is his words. Just if you doubt that there was any ambiguity about it, he said that the argument of the Trump administration, the solicitor general, was quirky because what they were trying to do was take these narrow exceptions. And I've mentioned them before, but the children of ambassadors, for instance, are not subject to the jurisdiction. There's diplomatic immunity of a

broad kind. They are in a different position than people who are born here or otherwise. And he said the idea that they're trying to take these narrow exceptions and broaden it. And I'll say specifically the way he's trying to broaden it to two ideas, one that only those parents were domiciled in the United States in other words, intent to stay. And also, relatedly, they think that have allegiance to the United States. Only their children are birthright citizens. And that's not what

the thing says. So if you're a textualist, the idea that you're coming up with this weird theory about allegiance and even domicile, many people with green cards might return to their home country, or have their heart in their home country. And yet, this argument that he's making

seems to apply to basically anyone who's parents are, or lots of people anyway, who's parents

are not American citizens. And the breadth of the argument compared to the text, Roberts, rightly causes being generous, calling it quirky. It's a ridiculous argument. And that's what justice after justice said to him. Yeah, I think Donald Trump thought he was going to intimidate his conservatives. And he said he just gave them a chance to do backflips to show how not obedient

“to him. They know. And I think that's why man, baby, got upset and left early. Neil Gorsuch brought”

up whether Native Americans would count under this theory. He asked the solicitor general, "Do you think Native Americans are birthright citizens under your test?" And wow, Corey, Trump's lawyer responded by saying, "I think so. I'll have to think that through." Nothing boost confidence for me in the sweeping Constitutional overhaul, like I think so. I'll have to think about it, Corey. I mean, yeah, please think about it before you try to rewrite

150 years of law. How unusual was this for you to see these conservatives? So skeptical, I mean,

I think, no, I think it's at least 6-3. There's no way that those 6 justices are the only possible

votes to uphold this executive order, our Thomas, Alito, and Kavanaugh. And Kavanaugh, I don't think, it's too embarrassing for him. Any justice really that wants to show independence from this

“administration, I think, has to say what the tech says. I do want to say something about the”

Native American case. I mean, there is a case on the solicitor general side, specifically about Native Americans. Let's say Native Americans, at least at the time of ratification, this has changed in the 1920s, are not citizens of the United States, even though they're obviously born within the territory, they're citizens of Native American nations. And so there is this kind of different circumstance. And that's partly, I think, why he was tripped up. But what really they were trying

to show, I think we're going to try to show in that question, is that Native Americans are in a unique situation. And nothing in the theory that the solicitor general is offering about domicile and about allegiance are going to work in the case of really any of the cases, including Native Americans. But I think the ACLU's response to that was, you know, the fact that there is this case about Native Americans doesn't mean that it applies in the non-unique situation of Native

Americans that it applies more broadly. In the case that they kept coming back to, that the six justice is really where hammering on, is a case that decided all of this. One Kim arc, which was a Chinese national, and Chinese people at the time couldn't even become citizens who has a child in the United States, they couldn't become naturalized citizens. But they could give birth to

“birthright citizens, that's what Wang Kim arc says. And even in a time of massive bigotry against”

Asian Americans, the Supreme Court is still willing to say, look, the text says what it says. If you're born in the United States, you are a citizen. And, you know, the court really was hammering at the idea that somehow this allegiance idea or the domicile ideas what's going on rather than the common sense idea. And so, you know, these are the arguments that I made last week that we've talked about in-depth, and the court has made it really clear. The complication

of the Native American case is just different, I think, is the argument. Native Americans by statute, by the way, were granted citizenship and their children's citizenship in the 20th century. 1924. Yeah. Well, meanwhile, on the other side of town, we saw the Swamp eat one of its own alligators, Pam Bondi. The most nakedly, brazenly corrupt authority general in American history was fired last week for not being corrupt enough. And she got her one way to get to Christina

“Island, and, you know, Dan Buggino and Greppard Vino, are there waiting for her?”

Corey, there's so much to talk about with Pam Bondi. 23,000 criminal investigations dropped. The terrorist of January 6 sprung white collar crime ignored corporate crime enforcement was pretty much put in hospice. 3.1 billion in penalties. She let 18 companies walk. She was like, "Oh, keep the fines, guys. Buy yourself something nice." I mean, historically,

we like to compare scandals to Watergate, always. But does this moment go way beyond that

Corey? I mean, isn't this something just structurally different? Well, look, we had legislation that was passed. It said that the Epstein files are to be released, and that the only reason to redact information is to protect victims. And instead, of course, Pam Bondi did everything she could to protect the president of the United States, and I don't know if you want to call it irony or viciously, did not protect the identity of victims. So, you know,

you have a literary general in direct defiance of the Congress and of the law. And the irony, of course, is that it's not that she violated the law that got her fired, but that she didn't violate it more. Exactly. Exactly. That's exactly. That's exactly. That was a complete, you know, hiding of the Epstein files of all the things that make it very clear that this sex trafficker was his good friend. The real question with Pam Bondi is, you know, who are we going to get next, and we have

the acting attorney general who's a crony of the president, and that crony, I worry is going to be possibly even worse. If we get to the point where there's a real nomination, I think we've got to look at Watergate actually as an example, because what happened in the firing after the firing and indictment of Nixon's attorney general, Elliott Richardson, is nominated. And the Congress, the Senate, makes Richardson give a series of concessions to the Senate, a promises that actually

he does adhere to. And one of the most important is that he's not going to fire the person

investigating the crimes against the president, the special prosecutor, Archibald Cox. And so when he's ordered to fire Cox, the reason, a lot of times people think it was some virtuous thing, the reason why he refuses to do it is because he's promised the Senate not to do it. And what I think we've gotten so wrong, we've gotten so many things wrong about Watergate, but one of the main things that we've missed is the way that it actually was the Congress,

bring down a president and block him from being able to hide his own crimes. And so we need to do that

“in the next attorney general. And we, where I think likely we'll have an acting attorney general”

for some time, but if we ever get a real nomination, we've got a demand accountability, and it does have a fact, I think, when you make that promise to the Senate, at least in the Watergate case, it has matter. So I want to point out that Pam Bondi got this job for two reasons. Number one, she took a bribe from Donald Trump back in Florida when she was the attorney general to make the Trump University investigation go away, and it did go away after Trump gave her

a donation. And she got this job because the guy Trump originally wanted to protect him, while he protects child rapists, was Matt Gates an actual child rapist. So I mean, like,

Pam Bondi, yeah, you're right, she didn't get fired for weaponizing the Justice Department,

or she, she turned the rule of law into pretty much like a felony loyalty punch card, right? I mean, what I'm wondering now is, even though she's gone, can she still be compelled to testify before Congress, now that she's no longer in office, Congress has said her subpoena still stands, and it'd be very interesting to see what her testimony would be like, especially when she's no longer working for this White House, and hasn't been given a pardon yet.

Absolutely. Donald Trump might have criminal immunity for his official duties, but this attorney general does not. And if she's like to Congress, that's potentially going to be an issue of contempt. That's not going to be prosecuted in this administration, but maybe in a future administration,

the Congress can demand accountability for her lies and to investigate, you know, and let's not

forget, Nixon's attorney general was prosecuted, and this attorney general certainly can be prosecuted for her actions, if they're criminal, and there are several, including defying Congress and lying to Congress that might be. And, you know, Preparars had to us in a former U.S. attorney in New York in our conversation with him several weeks ago, which wrong with the people in these positions of power is they feel the power in the moment. They don't realize that directing is going to come later.

It's not worth it. It's your reputation to the possibility that you'll be prosecuted, and Bondi is really the test case of this. That somebody who just thought she had this power to talk to senators, as if, you know, she was part of this dictatorship, and they were nothing, and let's see if her open defiance of the law brings a prosecution.

“It certainly has trashed, I think, for life, for her reputation. This isn't somebody that will ever”

think about as a serious public official again. Well, look at you and your gift for understatement. Yeah. And you're right, you know, coming soon, somebody worse, because I don't know how you could replace her with someone who wasn't worse. You've got her a place or with someone who's going to make the Epstein victims go away more completely than Pam Bondi. And so bringing in Todd Blanche, Donald Trump's former personal lawyer,

the guy who actually went to delay Maxwell's prison cell, and negotiated that child rapist into a cushy club-fed prison that child rapists aren't supposed to get. I mean, Corey, I don't think the average layperson like myself gets it, but hiring your personal defense attorney to run the justice department doesn't really scream rule of law, doesn't. No, and I think we've got to really elaborate on what the role of the attorney general is supposed

“to be. And I think, you know, unfortunately, some Americans don't realize this and Trump is taking”

advantage of this. Bondi really did act as the president's personal lawyer trying to really suppress matters of law that were acquired by law, like information about the Epstein files. Most importantly, doing the bidding of his demand for revenge against his political opponents, called me in James, and going along with that, the attempt to use the executive branch to shut down political opponents. There couldn't be anything more at odds with the idea of what an attorney

general is supposed to be. It's supposed to be the chief law enforcement officer of the United States. And in fact, the case, U.S. versus Nixon, is called that in order to illustrate the idea that the president isn't the same as we the people as the United States. And yet Bondi disregarded any of those obligations and really saw herself as the servant of the president doing his political bidding. And one indication, yes, that things are going to get worse is that the

acting attorney general is actually the president's former personal lawyer. And remember Harriet Myers, who was nominated by George Bush, also been Bush's personal lawyer. And one of the reasons for her review, and not getting close to confirmation, was that's not what these positions are meant to be. Supreme Court justices are supposed to be independent. The attorney general is technically part of the president's cabinet, but the idea is supposed to be especially in the post-Nixon period

that they are the chief law enforcement officer of the people. And yet she's just destroyed that. She's brought us way back to Watergate and worse. And Harriet Myers, let's remember

All right, we got to take a quick break when we come back. It appears the Supreme Court

“realized that they went a little too heavy for the rule of law. So now they're going to give”

Steve Bannon a nice soft pillow and a foot massage. We'll be right back on the oath in the office. "Can I be a dictator?" I said, "No, no, no other than they won." How did Donald Trump turn the presidency into a king? Well, it didn't start with him. It was the goal of a decade's long master plan. "When the president does it, it is not illegal." "I'm the decider and I decide what is best." "Where they won't act, I will."

I'm David Sarota from the lever. On our new season of the award-winning master plan podcast,

we uncover the stealth plot to create an all-powerful president, or as some call it

"The Unitary Executive." "The Unitary Executive." "The Unitary Executive." "Our journalist revealed the hidden scheme to eliminate checks and balances, crushed democracy, and turned

“government by the people into government by one man." "I have the right to do whatever I want”

as president." Check out master plans season two, the kingmakers, visit masterplanpodcast.com or search master plan in your podcast app to start listening right now. This episode is sponsored by the ACLU. On April 1, the Supreme Court heard arguments and Trump versus Barbara, the ACLU's case challenging President Trump's attempt to end birthright citizenship. The ACLU and partners argued that the president's executive order violates the

constitution over a century of Supreme Court precedent and a long-standing federal statute. The 14th Amendment speaks for itself. The Constitution, not the president, defines who is the citizen. The ACLU is proud to defend the integrity of our constitution and protect birthright citizenship for every generation to come. Learn more at ACLU.org/barbra. You can also find the link in our episode description.

Welcome back to the oath in the office. I'm John Figelsang. So, Corey, we've well-established that in Donald Trump's orbit, loyalty is not rewarded. It is consumed. You can ask Jeff Sessions, ask Mike Pence, this is not a cabinet. This is like the revolving door to narcissism factory, which brings us to Steve Bannon, a man who is like Christian nationalism, dishonest, and not terribly healthy looking. And the Supreme Court just sent Steve Bannon's case back

for possible dismissal. This is, of course, when he was ripping off MAGA folk with his build the wall campaign and got indicted for it. And he's done his time, Corey. So, what message does that send about accountability for contempt of Congress if they're going to just maybe dismiss it after the fact? I don't understand any of this beyond narcissism. Well, you know, one thing that we've been doing on this show from the beginning is getting

technical, talking about how the executive branch and the presidency actually works and the vulnerability that the current set up has to collapse of the rule of law connects to the conversation that we're about to have with Lawrence Douglas. And in our system, the Department of Justice

is both extremely powerful and under the control of the president of the United States,

the Department of Justice is within the executive branch. So, when you really look at this case, like, why is this, you know, the Supreme Court, why are the courts going to dismiss this case against Bannon? And just to lay it out, when January six happened, Congress, of course, started to investigate. It was an attempt to coup destruction of democracy. And there was a subpoena for Bannon given his involvement in the events of January six. He refused to comply. He had no

legal argument. He just claimed somehow executive privilege that didn't apply to Bannon at the time

“wasn't a member of the executive branch. And yet, that's what he tried to claim, you know,”

without any legitimacy. And so, he was founding contempt and he was prosecuted and sentenced. So, now, why is this as he's appealing this conviction? Why is the court, why do they look like they're

going to let him off? And the answer is the Department of Justice, that they've withdrawn the

willingness to fight to defend their own position, which is that he's guilty of contempt. And when the Department of Justice withdraws from a suit, the way the courts think about is like, well, who's prosecuting him? You know, you can't just have some New York prosecutor enter in. It is supposed to be the Department of Justice. And yet, the Department of Justice big surprises under the control of the president who doesn't want Bannon his conviction to stand. And so, that's

the answer. And this is complicated, but yes, the Trump is controlling this, Trump wants to prosecute his enemies and forgive and pardon his co-conspirators. Yeah, of course.

the prosecution in courts of appeals. And it's to sloppy Steve, which Trump called him that

“after he told the truth about his son, having a meeting with Russians in Trump tower. I mean,”

again, this guy stole from maga. They don't care. That's all the cult of blind obedience. But I mean, there's no practical benefit here. He served as sentence. I'm worried about the precedent. Isn't there a danger professor that legal victories after the fact? I mean, the guy's already done his time in jail. So as symbolic as this is, this is going to be used to help rewrite the public memory about what actually happened. It's a great point. You know, there are multiple

fronts that are court to this podcast going on in this technical, strange case. One is, you know, the oath in the office president takes an oath to preserve, protect and defend the constitution.

This president tried to destroy the constitution in January 6. And part of what he's trying to do

is erase what happened to pretend that somehow this was a peaceful protest that he didn't incite insurrection, that he wasn't guilty of the crime of obstruction of Congress, even though he's being prosecuted for it. In the immunity case, which we'll mention in the interview coming up, largely let him off that. There were ways to still prosecute him, but for all intents and purposes, this is the prosecution was ended. You know, he became president. And the other thing that's going on

is trying to, you know, not only prosecute your enemies, but ensure that allies, even if you don't love them, that they're not themselves convicted of your own crimes. And January 6 is fundamentally the president's crimes. And so he has an interest. He pardoned, of course, a lot of the January 6. All of them. All of them. And here's one, you know, that is related. And so it's not going to happen through a pardon, but a related idea of withdrawing the defense of the prosecution and using

the Department of Justice again as a personal tool for your own benefit. When we talked about Pam Bondi, you know, who we talked about her as the president's personal lawyer. And here he is, again, using the Department of Justice for his own purposes. Yeah. And I just want to say the folks who wrote in, I'm asking why Steve Benin wears so many shirts at once. Folks, that's so when he vomits Yeager Meister in the middle of a drunk seizure. All he has to do is pull that shirt off.

And he has another one underneath. And he never even has to stop the podcast. It doesn't even

interrupt his recording. It's just incredible what this man can do. It's science is important to us here as well. Corey reports about Samuel Alito's health. Have now raised questions about a potential retirements. We learned that he had a recent health scare. I know that the court's composition factors into long-term constitutional strategy. And at this point, I mean, it seems like a safeish bet that both Alito and Thomas could retire in the next two years with this secure knowledge that

Trump would probably replace them with totally different aristocrat class white supremacists who

“despise women and despise democracy. Right? That's what we're at right now. There wouldn't be any”

surprises like David suitor coming through. Donald Trump would replace them with the most hard core right-wingers he could find. I'll certainly try. And, you know, let's just point out that Alito and Thomas, who are really getting up there in years. And yes, I expect a little resigned before the end of this term. So that their legacy remains for decades and decades rather than just for a few years, especially in the face of what might be a member of the Democratic Party coming to win the

presidency. And this is the tradition, you know, justice is stepped down in order to preserve their legacy. Is Trump going to be successful in picking a replacement that is as conservative? I mean, one thing just going back to the birthright citizenship case, it's very interesting, is that the three Trump appointees, the younger members of the court, Gorsuch, and Barrett, and Kavanaugh, in this admittedly extreme case of birthright citizenship, were willing to look at

the president, essentially, in the eye and say, "No thanks," you know, the Fourth Amendment stands. And the two older justices, really, are acting as, you know, not judges at all. They're really cronies of the president, Alito, and Thomas. I have a hard time calling them judges. They are super-curricular justices, but to call them independent judges, I don't think so. And Gorsuch has a stolen seat, as long as we're piling on. Gorsuch has Merrick Garland Supreme

Court seat, it was stolen. Sorry, go ahead. But I will say, John, and I don't know if this is, you want to push back against this, but I would say just as a sort of tying it together, this story to the birthright citizenship story, that, you know, those justices are turning out, especially Barrett,

“and Gorsuch, to be better than I thought, and are they better than Thomas and Alito absolutely?”

I mean, those are not judges. They are complete hacks. And we've seen Justice Gorsuch, for instance, in the gay rights case in transgender case, Bostock, about the interpretation of the 1964 Civil Rights Act, extend those rights to gay and transgender people, not a view that Alito was fond of, he was in a vigorous descent. And I'll mention to the Tariffs case, a really monumental case,

this idea that a president is essentially a king who came unilaterally installed Tariffs.

Which is really cute for him to do after giving this president a crown with the immunity ruling. I mean, come on, question. Really, really adorable after they made the president a king.

“Because really, that's what the founders meant. The originalists know the founders missed”

having a king so badly. I mean, to me, it just seems like the Congress is happy to be as far extreme right as they want. The Supreme Court seems to be like another institution that is totally under pressure from partisan capture, but they're the one that's pretending to be a stabilizing force. Is that fair to say? I mean, their role is to be a stabilizing force, but we know they're in the pockets of these oligarchs. And so I think John Roberts' whole narcissism comes out

and how much can he give the image? Well, yes, we gave the president an incredible kingly powers,

but we're going to take some of those away. A few of them, like, like, "No, you can't do Tariffs. You still haven't immunity. Go break the law. It's not illegal for you." Do you know what I'm saying? Like, it just seems a little too little too late to make up for their own mess they created. I mean, we are in heated agreement, of course, about the immunity decision. I think that if I had to find one Supreme Court action that enabled so much of the chaos and crime, really,

let's call it what it is that we're seeing it's that horrific decision and we'll continue to have people like Senator White House and Bedloo and to strategize about how to reverse that horrible, horrible decision. One of the worst certainly in American history that is enabled. This authoritarian takeover of our democracy, the self-coo, as I keep calling it, but although I was, I think, before the Tariffs case really losing all hope and the shadow

docket, I don't want to minimize that either without any opinions enabling so much of the president's authoritarian actions. But yet here in birthright citizenship and in the Tariffs case, they are important pushbacks against the authoritarian takeover. And assign that at least, you know, I say it's a good thing if we're in constitutional crisis, at least there's a conflict between the branches and we're not in the pure victory authoritarian takeover. And so I think these cases matter

in that sense that there are examples of even his own justices pushing back and what better evidence than the fact that he denounced them after going to the Supreme Court and the supposed

“to do my justices and he's so angry that they are defying him in his presence. That's what it”

means not to have a king. Okay, well, we got it to a quick break, but when we come back, we'll talk about what makes a corrupt society a criminal state with Professor Lawrence Douglas, author of the criminal state, war atrocity and the dream of international justice trust me. It's more fun than it sounds, we'll be right back. There is a lot, I mean a lot going on in the news around our government and our laws and there's one question we hear all the time. Is this constitutional?

If you don't remember all the civics classes you may have taken in school, you can get the answer to that question and many others by listening to civics 101. The claim podcast from New Hampshire Public Radio. Civics 101 is an entertaining way to learn about how our government works, or at least how it's supposed to work and you'll hear a lot of surprising stories along the way. Hosted by Hannah McCarthy and Nick Capoteche, civics 101 will help you understand a bit more about

what's going on and maybe even make you a smarter citizen. You can listen to civics 101 wherever you get your podcasts and tell them the author of the office sent you. Welcome back to the oath in the office, I am John Figelsing and professor, I am so excited to welcome this next guest. What a pleasure for me to introduce Lawrence Douglas, professor of Law, jurisprudence and social thought at Amherst and in particular, I mean this is an amazingly

timely conversation given what's happening in the news and his book, his new book is called the Criminal State which we'll talk about in death. I'll also mention two of his other books, the right-wrong man and the memory of judgment. Professor Douglas is an expert on international law and war crimes and we're going to talk to him in depth today about the history of war crimes and some as well about what's happening this week, literally, with the president threatening war crimes

himself. So welcome to the oath in the office, Lawrence Douglas. Welcome to my pleasure to be with you guys.

I bet you never imagined this book would be so feel good the month of its release, but wow,

this is the right book at the right time sir. Right. Right. Yeah, I always, it's always pleasurable when world history contrives to make your writing at least somewhat relevant even if it does so in ways that are quite tragic. I wanted to start out, I'm eager to talk to you about the moment,

“but to just for listeners, I think, you know, the idea of international law and the idea of war crimes”

is kind of abstract, you know, in a way that we often talk about constitutional laws much more

give us some of the history of the origin of war crimes, particularly in the Nuremberg trials and

“what happens that's different at that moment? Yeah, for sure. So when we talk about international”

criminal law, we're really talking about four core crimes. One is aggression or what Nuremberg

called crimes against peace, which is when one state basically plans and engages a unprovoked war

against another state. Then their conventional war crimes, these are things that were recognized all the way back going back to the hate conventions from like 1899 and 1907. These are pretty well-established things like, you know, if you don't give quarter to surrendering troops, that type of thing that's obviously a war crime, many other things is really kind of a laborer jurisprudence around war crime and then they're really kind of these core crimes of atrocity of crimes against

humanity, which again was a concept that was first really recognized at the Nuremberg trial and then genocide and genocide was not recognized as its own separate crime in the time of Nuremberg but with

“the genocide convention, the UN Genocide Convention of 1948, it became its own separate crime.”

And many people now think of genocide as it in a sense, the ultimate crime and international

criminal law, but you're really talking about those four crimes. And, you know, as you mentioned, Nuremberg was really instrumental in pioneering at least the prosecution of three of them, crimes against peace or aggression, war crimes and crimes against humanity. Take us back to the moment and just as a way of trying to get the main idea of these crimes and how they became crimes on the table, so you tell us in the book and just now that they really are in a sense created

in the Nuremberg trial and the aftermath of the horror of the Holocaust and Nazism and Nazi aggression towards the rest of the world. I mean, how does that happen and can you say something about the controversy and how you think of it, the worry in particular at the time that, you know, because there usually law is perspective, we have a law, you know that you might violate it and, you know, you're warned in advance, but here at least one of the accusations was that, you know,

you're making the law up after the fact and it's kind of retrospective in a way that violates the principle even of the rule of law. Now, in our own moment, we can look back at it as a precedent, but tell us more about what happened at the time and how this did become such a core part of international law. Sure. So, you know, I guess it's familiar probably to your listeners this notion about, for example, our constitution is a bargains expos facto law and, you know, as you

mentioned, it's considered like a fundamental violation of the principle of fairness to hold someone criminally responsible for conduct that wasn't criminal at the time that it was engaged in. So, Nuremberg, as we already just mentioned, kind of pioneers to separate incriminations and international law crimes against peace, crimes against humanity. And you could say that both of them were then vulnerable to this charge of holding people responsible for conduct that wasn't criminal at the time

that was engaged in. That charge didn't have much traction with regard to the crimes against humanity. The prosecutors at Nuremberg were pretty convincing and arguing that, you know, even if technically

speaking, we're first recognizing crimes against humanity here at this trial, it shouldn't

come as any surprise to the defendants that mass murder is a crime. So, people they really didn't fly this argument that crimes against humanity was this violation of the bargains, you know, of expos facto law. Crimes against peace was a very different matter. Crimes against peace was this notion of launching an aggressive war. And, you know, one of the things I try to do in the book is you've actually kind of look back a little bit more on the development of public international law

in, let's say, Europe, the right to wage war for whatever reasons a state wants was basically kind of understood as a basic right, a basic prerogative of sovereign states. And so, Nuremberg basically engaging this kind of really radical proposition, which was taking something that had for centuries been considered sovereign prerogative and right. And then suddenly turning it into an article of international criminal law. And we should recall not only did Nuremberg turn this war of aggression

into an article of criminal law. For Nuremberg, it really was the center of the prosecutions case.

“I think for many of us today, we think of, well, the paradigmatic Nazi atrocities of genocide,”

crimes that each man in extermination of civilian populations, particularly the Jewish population of Europe. But that wasn't the understanding of Nuremberg. Nuremberg, really, the key crime for the prosecution

you know, not only is aggression a crime, it is the supreme international crime because it kind of contains within itself the accumulated evil of all the other crimes, namely the war crimes and crimes against humanity. Our guest is Professor Lawrence Douglas author of the criminal state war atrocity and the dream of international justice. Professor, I'd love to ask you about the title

“of your book, because when I think of Nuremberg, I think about prosecutors trying individuals,”

but it was the system itself that enabled these crimes. So your book centers on a very powerful

concept in the title of the criminal state. And I wanted to ask you, what does it mean to say, a state itself is criminal, not just the individuals running it? Yeah, it's a great question. It's a great question because one of the things I do try to make clear in the book is that even though I'm very much taken by this concept of the criminal state, it's not as if the book is a contribution to kind of a very separate literature. There's a literature out there which tries to kind of argue that states

themselves can be prosecuted. And that literature usually borrows from notions of kind of corporate criminality, you know, just like a corporation can sometimes be accused of imbezzlement, that corporation is a whole. They try to use that concept that's not what the book is about. It

“really is about the challenges of bringing prosecutions against individuals who are part of this”

criminal state. Now this concept of criminal state was something I came across as kind of when I was working on an earlier book. There was this very interesting interview that took place back in 1965 between the publisher of the most famous German newsweekly, Dershpiegel and this very famous German philosopher Coliasper. And Yosper is the one. Yosper is the one who used this term in German. It's for brush or stop. But brush or shot. I wanted to ask you about that. Exactly. And it just means criminal state.

And you know, when I was doing a little bit more reading, I was realizing, well, a lot of people use this term. Honour aren't used as the term criminal state in Ithman and Jerusalem. Very well-known Italian legal thinker, probably less well-known in American circles, but this guy, Georgio Dovecchio. He also uses the term criminal state. And so I was really taken with this concept. And again,

“less a kind of legal concept than more kind of a conceptual way of thinking about a state in which”

basically, it's not just the bad regime. It's not just, you know, where you have, let's say, ahead of state who's engaging in crimes or part of the state is doing really bad things. But in which the entire state itself, its bureaucratic apparatus, its military, its judicial system, that all of it has been basically deformed to the point of basically kind of pursuing criminal ends. And it does create, you know, once you have that kind of state, I do think it creates

incredible problems when it comes to prosecuting individuals. I'd love to ask you, actually,

I want to get, of course, to our modern individuals that might be guilty of war crimes or ordering them. And we'll get there very soon. I'm sure that listeners can already hear in your descriptions of Nuremberg, some echoes of what we're worried about at the current moment. But I could want to ask you about some of the figures, because, of course, Hitler has committed suicide famously by the time of the Nuremberg trial, he can't be tried for these crimes,

including the crime of the aggressive war. But can you talk about some of the figures that are being tried and how we bridge that gap, you're exchange with John, you know, got to that idea that although there's a background of a criminal state, it's individuals that are actually being prosecuted, not the state itself at Nuremberg. And so who are the figures that are responsible for this? And, you know, goring for instance, I imagine you'll talk about, but tell us some of

the challenge of after Hitler's death finding the person who can be indicted for this crime.

Yeah, so at Nuremberg, you end up having these 22 people, ultimately being tried, actually,

one of the Martin Borman was being tried in absentia. But so 21 people actually in the dock. And as you point out, Hitler's committed suicide, Gurbals's committed suicide, hemalist committed suicide. But who do we have there? Well, we have goring who for many years was the second and command of the third Reich. You have this Joachim von Rippentrup, who was the foreign minister. You have both, you know, the Kindle, who's the head of the military. So imagine a trial in the United

States in which let's say the Vice President is on trial, the Secretary of State is on trial, the head of the Joint Chief of Staff is on trial. You know, you're talking about central people in the leadership of the Nazi state. But as you also point out, you know, when you're talking about, let's say the crime of aggression versus let's say crimes of atrocity like genocide or

When you're dealing with aggression, you're really talking about people who have the absolute leadership of the state. So it really is only kind of a very small handful of people that you could prosecute. But once you start looking at something like these atrocity crimes, crimes against humanity or genocide, you're talking about potentially thousands or tens of thousands of people being implicated in these state-sponsored mass crimes. I mean, the crimes are mass both in the sense

of the number of victims, but also in terms of the number of basically perpetrators and let's say

“accessories that you need to facilitate the, you know, the successful mass killings.”

Yeah. I wanted to ask you, you point to Vladimir Putin's war in Ukraine as a modern example, and I would agree, but what is it that specifically distinguishes, say, a brutal criminal human rights of using war from a criminal state in this framework? Yeah. Well, I think a criminal state, I mean, to the extent that I understand the concept as it was developed by these other thinkers. And it is

interesting to say to note that they all use this term, but they never really unpack it. So it's

more like, that's some of the thing I kind of try to do in the book a little bit more, which is to kind of like, well, what does it mean to say that it's a criminal state? And it usually seems to mean a state that is both kind of domestically repressive, like deeply repressive, like a state that commits crimes against its own legal subjects and citizens, and then also state, which is aggressive as well. And it seems that also one of the keys to this is the way in which the legal system

itself in these states is entirely deformed, so that law itself becomes kind of a tool of basically criminal purposes. So it's not simply the case that the administration of the law that, you know, you have this law in the books, but the administration of law fails to be faithful to the law on the books. It's actually the content of the law itself becomes utterly deformed and becomes a facilitator of these mass crime. So it's, I'm sorry, but it's the threshold then atrocity,

or is it something deeper about how the state organizes its violence? Sorry, Corey. Yeah, I mean, I think it's a very good point. I mean, I think part of it has to do with, you know, we can also make it up in a certain way that they do. That's seem to be the case that, you know, a state that is deformed in this way. It's not unlikely that it is going to be a state that also

“commits a trotace crime. Right on. So I think maybe that's kind of the best way to sit. Now again,”

the question is, you know, if the state simply commits a trotace crime without having to form the law, I think we would still agree that it's a criminal state. I mean, it seems like atrocity seems to be almost kind of like a certainly a sufficient condition, whether it's a necessary condition, it seems like you could also have a criminal state that hasn't yet perpetrated these

trotace crimes, but it seems like it's well on the way if it has this kind of ultimately deformed

legal system bureaucracy military. What do we do with the fact, and this might be a bridge to talking about the contemporary case, but with the fact that Vymar Germany was a parliamentary democracy that essentially collapsed into Nazism? I mean, what do we do about the arguments that say while these individuals as corrupt as they were were democratically elected? I mean, was that argument at Nuremberg that got taken seriously in our own time? I think that is what

we're facing, does Trump have the authority to do what he's doing? Well, he was elected. You're going to hear that kind of populist rhetoric. How did that fit into the Nuremberg case?

“And if you want to, you know, make that bridge to the contemporary point and help us think”

about how this idea of international criminal violations fit in with the notion of a domestic state in which at least their democratic procedures in place? Right. Well, obviously, yeah, Vymar unravels. I mean, I don't know if we want to, you know, get into the whole fraught question about the similarities or the dissimilarities between Vymar experience and the U.S. today. I mean, I would want to emphasize that Vymar was a very vulnerable and short-lived democratic

state. I mean, the United States has a much longer and richer, more vibrant and more institutionally anchored democratic tradition than Germany ever had. It's a good point. Even within Vymar,

you had, you know, these judges who were not Nazi judges, never became Nazi judges, but they were

not at all fans of a democratic state at all. So, you know, they were built in vulnerabilities to that system. And, you know, I think at Nuremberg and then actually, in some of these other

by saying, "Look, I was democratically elected, and therefore I had a mandate to commit genocide." I mean, no one really kind of made that argument. The argument that was made, which is, again, goes back to this whole question about the deformation of law, was that in many ways, if you said to say, "If you had to ask Nazi Germany, what is the foundation and source of law?" Jura said, "It was Hitler himself." And so, if Hitler himself is the foundation of law, how can he be said

“to be in violation of the very law that he was in a sense the most basic articulator of?”

And that's not a crime if the president doesn't. Yeah, right. And it, you know, it creates this problem because if what he's saying is legal, then that becomes, you know, potentially a justification for everyone under him, saying like, "How can I be accused of crime?" If I'm just following the orders that he gave, then you recognize that himself was engaged in legal actions. That created a lot of problems for German post-war prosecutions, that kind of argument. Should we pivot to the, I mean,

I think we're all dying to ask, you know, Trump has, and John, you can help me out, threatened to bomb Iran back to the Stone Age, he's certainly threatening civilian infrastructure. Yes. You know, his kind of promise of what seemed to be war crimes, and I want to ask you about this, is, you know, not hidden. It's explicit. So, I mean, what do you make of all this? Is it as clean a break with the Nuremberg Presidents? Is clean a promise to violate the Nurems'

establishment, Nuremberg, and also in the UN charter against aggressive war? I mean, we can ask both about, with the caveat that war crimes are rhetoric and threatening war crimes is not the same as war crimes, right? Yeah. Well, that's part of what I wanted to ask about. I mean, maybe you could reflect on that, too. And I guess I divide up two issues that have already come up. One is the threats against civilian infrastructure and arguably against civilians, and then also the war itself

as aggressive war. So, I mean, on those two counts, are we in the territory of war crimes of a kind that we might eventually see a war crimes trial about? That also raises the question of accountability in Nuremberg. There was an accusation, of course, of Victor's justice. You need the criminal state to lose. And in the United States, I'm wondering, too, where the accountability might come from. Right. Well, so in a sense, there are two separate questions. One is a question

about just launching this war in the first place. Yeah. I mean, is the launching of the war was

“that a violation of the UN charter? Does it look like an illegal war? And I think the answer”

transparently is yes. I mean, this was basically, you know, you can raise these for our questions about, you know, what is imminent mean? I mean, everyone that we've, at least the experts, people far more expert than I am about this particular conflict suggests that we weren't in any kind of imminent danger from any sort of attack from Iran. So, you know, it certainly looks like a violation of the UN charter in illegal war. That's a little separate from the question of whether

it's a criminal law, right? I mean, there's a difference between describing a war as illegal, and then there's kind of a higher threshold for saying it's actually criminal. And I guess one of the things that I argue in the book is that what separates that threshold, what makes an illegal war criminal, is when it is actually conducted through war crimes. And that seems to be something that he is transparently threatening. Now, whether he acts on that threat. Now, we know that,

you know, it's very difficult to predict the presence of behavior from one nanosecond to the next. I mean, he threatens one thing and then he, you know, he backtracks the next second. So, we'll have to actually see. But certainly the kind of threats that he's making seem like a kind of transparent threat of committing war crimes. And then there's a separate question that you raise,

Corey, which is, would we ever see him on trial? And the answer is probably no, for exactly the

“reason that you want to mean. I think when you talk about international criminal law,”

I think the analogy I often use is instead of saying the cup half full, the cup half empty is like, "Well, do you see the cup as nine tenths empty and one tenth full?" And I suppose I see it maybe as one tenth full. But it is very, very unlikely that there'd be any international trial of Donald Trump. I mean, even Vladimir Putin, this maybe gets a little bit more technical than we need to get. But if Vladimir Putin through some kind of like weird, you know, time warp experiments were kind of

transported right now to the Hague to stand trial, could he be tried for launching a war for

aggression in Ukraine? And the answer is no, he couldn't. The ICC, the international criminal court,

wouldn't even have jurisdiction over that crime. Now, he could be tried for war crimes,

crime at Nuremberg, has almost kind of fallen by the way some talk about the prosecution of international crimes. So, I mean, is international law capable of ever holding powerful states

“accountable, or is this just something that really only applies to weaker or conquered nations?”

Yeah, I mean, a lot of people have certainly made that criticism. The one thing I would actually kind of point out is if you go back, for example, to the international criminal tribunal for the former Yugoslavia, this was a court that was established in 1993 by the UN to deal with war crimes, crimes against humanity, genocide, that was in the, you know, roads ahead of the Yugoslavia civil war. A lot of criticism at that time was that even that court, it's just going to try these really

low-level people. It's never going to try, it's never going to get a hold of slipping on the

loss of it. It's never going to get a hold of Racco cardinch, you know, the former head of the breakaway sir Bosnian Republic. It's never going to get a hold of this Raccoon Lodak who is the general who was responsible to separate needs of massacre. Well, it ended up that they got hold of all three of them and prosecuted all three of them. Now, Melissa's died before he could be convicted,

“but the other two were convicted, sentenced to life. So, you know, it's a little hard to say.”

It's a little tricky to make. What about, as we're getting towards the close, I mean, you know, part of what's enlightening but also of course frustrating about this conversation is that we look at Nuremberg and it's so clear the evil of the crimes and there is a sense that the rule of law

won out, that you know, there was a real trial. We saw the evidence, the information came out,

the replenishments, you know, as imperfect as those trials might have been in any individual case, at least it's at this precedent that you're talking about here and in the book of seeing these norms of just say embodied in international law. So, now when we think about the question of whether or not Trump will ever stand trial, whether he'll ever face a Nuremberg trial or something like it, I agree with you that the chances are are small. But what about a kind of different approach

to all of this, which is domestic law, Trump himself might not live, but if he does live and he has committed crimes, the immunity case aside and we've been talking about exceptionally immunity case in ways around it, he might face prosecution here and certainly Pete Heggseth, the Secretary of Defense, who is at the center of so many of these threats, might himself face accountability. I mean, what about that as a way forward of, you know, in some ways being inspired by these

international tribunals when it comes to our own system of justice? Is that a possibility going

“forward or am I being naive here? No, no, no, I think, you know, it's, I'm not sure about the”

present. I mean, I do think about the immunity decision by the Supreme Court as creating a very, very high bar, you know, this whole business about, you know, core activities and throwing absolutely immunity, you can certainly say that commander-in-chief powers, you know, fall clearly in that core and that's not even the official acts, which have this very strong presumptive immunity as well. But then when you talk about someone like a Heggseth, yeah, I mean, there certainly could be

people. I mean, when he talks about these stupid rules of engagement, I mean, he might be, you know, almost confessing that he's going to commit crimes in the way he prosecutes this war. Of course, then we have one of the things we've also seen is the way in which Trump has abused

the pardon power. And so, you know, there's always this chance that he would pardon someone like

a Heggseth or engage in almost some kind of anticipatory thing, though. Again, it's, it's, their limits to the degree to which you can issue anticipatory pardon. So, yeah, there is definitely the chance. And of course, you know, there's the more larger thing just about public opinion that, you know, hopefully people become educated about what's being done in the aim. And, you know, that could have, at least, you know, if not necessarily legal consequences,

real political consequences when it comes to next election cycle. Yeah, many of the presidents cabinet have said the immunity case applies to them. And, of course, it doesn't supply to the president of the United States. Oh, yeah. Not the henchmen. They haven't realized that. Yeah. No, they're acting as if they are immune. And I guess I would say it's a great point that in the immunity case itself there is this idea that immunity is presumptive within

the outer perimeter of official duties, but there also is this argument that there is a more solid and fundamental immunity when it comes to core powers and arguably that includes the commander and chief. I mean, I guess I wonder when it comes to crimes against humanity, attack on civilian populations, the extreme that we're getting, whether or not the court might be in a position to reconsider some of those supposed norms. It's such a misguided decision. One of the things

that we've been talking about, for instance, we had Senator White House talking to us about how to try to reverse or it's severely narrow the case through legislation. We've talked about

what our horrendous decision it is. I mean, imagine a decision that would grant immunity from

the crime of genocide that it seems unfathomable. That may be even there, although it seems far off, that we might get a reversal of that way of thinking. Yeah. No, it actually goes all the way back to, you know, during the Bush administration when John E. wrote the so-called torture memos. I come back with this extraordinary statement. He says the federal law against torture would be unconstitutional if applied against the executive in wartime. I mean, just an astonishing statement.

It sounds good, though. Sounds real official, like. Yeah. Yeah. Exactly. Professor

Lawrence Douglas, what a pleasure to have you with us. The book again is the criminal state,

“war atrocity and the dream of international justice. Sir, what is the best way for our listeners”

to follow you and to keep up with your work? Well, if they're interested in getting the book, I mean, they can get it through Princeton University Press, you can get it through bookshop.org. You can get it through Amazon, other dealers. And I write regularly for the guardian, I write commentary for the guardian, and also regularly for the TLS. And you can. What a pleasure. Thank you. What a pleasure. Thanks so much, Lawrence Douglas, for joining us on the earth in the office.

Great having this conversation with you guys. Thanks so much. Appreciate it. Thank you. Corey, what a great guest. I know I should be much more depressed after that conversation, but I found it at somehow filled me with hope for all of this. I think we're we are getting better at naming it and maybe that means we can get better at facing it. But thank you very much for another excellent episode, Professor. I want to remind everyone

that we will read your mail. So drop us a line anytime. And likewise, tell your friends, please subscribe and please share this episode. Corey, anything you want to say? I just had a sort of final thought. I couldn't agree with you more, John. That, you know, this is a depressing topic. We're talking about crimes of aggression, crimes against humanity, Nazis, and comparing it to our own moment. And that is, of course, upsetting and worrying.

And yet, at the same time, what this podcast is all about, and I thought that conversation with Lawrence Douglas did this perfectly, is naming what's going on, being extremely honest, not hiding from the fact that the president is using the F word as he threatens an entire civilization, as he put it in one of these so-called truths. But yet, you know, putting it in the context of history, seeing how the law and the rule of law won out in history often, should give us hope for the future.

And so that idea, we're not going to see a Nuremberg trial of President Trump, but what we see

“domestic accountability, possibly. That's what this podcast is all about.”

Yeah, shout out to all those good conservative Christian folks who weren't offended by Donald Trump's racism, or threats of genocide, or illegal war. But we're really turned off to having him use the F word on Easter Sunday. Your moral compass is just perfectly acute. I want to thank everyone for listening. My book is called Separation of Church and Hate. Please pick it up by a Montserious XM Progress Channel 127 every evening in prime time.

And I host the John Figelsign podcast. Corey, how can our listeners keep up with you? We have the oath in the office. Of course, you can find it on all platforms. We're regularly in the top five or top three of Apple podcasts. And we've just got a ton of

amazing reviews. So keep leaving those reviews. They are almost all five stars. We're 4.9.

That's very close to five. And we really appreciate it. I love reading them. We have a sub-stack. The oath in the office, sub-stack. The oath in the office, YouTube channel.

“And most importantly, if you could tell one person about it, that's how we're growing so much.”

We've been about tripled from the time that we started. And that's largely people just spreading the word. Well, thank y'all for spreading the word. I'm John Figelsign. A lot of the Professor Corey Brett Snyder at a week. We'll see you next time on the oath and the office.