On a recent episode of the podcast, Stay Tuned, former U.S. Attorney for the Southern District of New York, Preet Bharara, answered a listener’s question in a way I thought was both powerful and absolutely correct.
The question had to do with Donald Trump’s Deputy Chief of Staff Stephen Miller’s rather outrageous and hysterical response to a federal district judge’s ruling that granted a temporary restraining order prohibiting the Trump Administration from deploying national guard troops to Portland. The judge, Karen Immergut, ruled that the depiction the government was using of Portland to justify deployment of national guard troops was disconnected from the reality of the situation on the ground.
One of Bharara’s listeners was curious if Miller had any legal backing for his over-the-top response or if he was just participating in political theater. Here’s Preet’s response:
Preet Bharara: I’m afraid it’s much worse than political theater. So, Trump adviser Stephen Miller, as you mentioned, recently took to X (formerly known as Twitter) to label that federal judge’s ruling a “legal insurrection.” The ruling itself is a “legal insurrection.” What the hell even is that? It’s a self-cancelling oxymoron, as absurd as saying “nonviolent war” or “lawful terrorism.”
By definition, an insurrection is a violent uprising against authority. Legal process, on the other hand, is the authority of law and action. You can’t have a legal insurrection anymore than you can have a peaceful war. The phrase collapses under its own weight. It’s nonsense, and dangerous nonsense at that. It’s a rebellion against logic and an insult to the rule of law, all in two words.
But it fits a pattern. It calls to mind the similar hysterical hyperbole of Senator Mike Lee (R-UT) not too long ago when he didn’t like the preliminary ruling of a judge in the Southern District of New York. “It’s a judicial coup” he proclaimed. To educated but ignorant MAGA men, even a mundane constitutional process is treachery. Mere disagreement is an “insurrection” or a “coup.” Everything is an attempted overthrow of the government except, of course, actual violence on January 6th.
Now, there is a way to respond to a court ruling and disagree with it. It’s called an appeal. Indeed, the Justice Department wasted no time in appealing Judge Immergut’s ruling to the Ninth Circuit Court of Appeals. That’s how it’s done. That appeal is the lawful orderly path. You make your case to a higher court and let the rule of law play out. What you don’t do is hurl epithets like “insurrection” at a judge for doing her job.
Yet, Miller is jumping ahead of the game, implying rebellion and maligning the judge instead of respecting the process. It’s as if, in his view, the very act of checks and balances is an affront to authority. Hmm, I wonder if there’s a word for that.
Disagreement by a judge isn’t sedition. It’s a normal part of our legal system. It would be like arguing that a tackle in football is a criminal assault. No, that’s how the game is played.
There’s a rich irony here. The judge under attack, U.S. District Judge Karen Immergut, was appointed by none other than President Donald Trump in 2019. That’s right, the very administration now crying foul actually put her on the bench. Judge Immergut, a Republican, isn’t some anti-Trump partisan. And she ruled based on her interpretation of the law and the evidence ,which she knows something about, having been a US attorney appointed by another Republican president, George W Bush.
Now, Miller’s rhetoric isn’t just moronic, it’s dangerous. Tossing around words like “insurrection” and “coup” to malign lawful court decisions has a distinctly authoritarian echo. It’s the kind of language tyrants used to delegitimize any challenge to their power to claim emergency powers in the absence of any emergency. As Garry Kasparov recently said “Everything will be called an emergency until total control is established. Once that happens, it doesn’t matter what you call it anymore.”
The message is chilling. In Miller’s view, if you don’t bow to the executive’s will, you’re an enemy of the state, even if you’re a coequal branch of government. We’ve seen this kind of demonization of judges in other countries and it never ends well. In America, judges must be free to rule without being branded traitors. There’s always that quaint other option: appeal.
Finally, let’s talk about projection and hypocrisy. Stephen Miller loves to lecture that inflammatory rhetoric can incite violence, and on that narrow point, he’s not wrong. Yet, there he is routinely tossing lit matches of his own. Miller blithely BS’s his way through each day’s propaganda cycle. This is a man who literally, while decrying liberals use of the fascism label, himself has labeled his opponents fascists, saying we have descended into “third world fascist tyranny” and urging voters to vote out the “fascist Democrats.” He’s painted protesters and even judges as part of a “left wing terrorist network” in his fevered narratives. It’s the textbook double standard of a demagogue.
As commentator David French observed, Miller “constantly deploys deranged rhetoric even as he claims the left incites violence with its own language.” If Miller truly believes that words can lead to violence, then he knows the peril of his own words, but he doesn’t care.
In America, the law is the light that guides us. Disagreement is not rebellion, and the judge’s ruling is not an act of war. “Legal insurrection” is a null phrase, a cynical sound bite. The real and gathering threat to our republic isn’t a judge doing her duty. It’s the demagogues who would demonize her for it.
