Politicized Stupidity and the Legal Threat from Within – MishTalk

One of the more annoying and more pointless aspects of the Trump era is what I call politicized stupidity. Politicized stupidity is a kind of aggressive not getting the point by people who are otherwise perfectly well equipped to getting the point.

Let me give you an example of what I mean. So President Trump has just demolished the East Wing of the White House. He did this without any form of consultation, as if the White House were his personal property, and in order to build a giant ballroom that there’s no demonstration of need for and that, again, he’s treating as a point of personal property. He’s choosing the design; there’s no process of respect for historical or cultural integrity. And he’s financing this whole project. 

And he is proposing to pay for this project—that is chosen entirely by himself with no consultation—by accepting donations from corporations and wealthy individuals. He has people who have business before the government, who seek favors before the government: Some of them have mergers that they’re hoping for approval. Others are in the crypto industry that has received a massive government favor in the form of the GENIUS Act and who are hoping for more favors. Others of whom are in business with members of the Trump family. If the country needed a ballroom, then there should have been a review process, a design process, and Congress should pay for it out of public revenues because it’s the People’s House, not Donald Trump’s house.

Okay, you get that. But there are people who insist on not getting it. There are people who say, Well, are you against ballrooms? Don’t you think the White House ever needs renovation? Other presidents have renovated the White House in the past. The point is not that you are for or against renovations, of course; the point is you are for or against not treating the White House as a person’s property. But there’s a kind of deliberate refusal to get the point, and you see this in many places in our public media. It’s the same when Donald Trump delivers a pardon to a crypto criminal, a convicted crypto criminal, who has helped to enrich his family.

No one has ever pardoned people because they gave money to his family, his sons, his relatives. No one has ever delivered pardons because he just seems to have a general attitude of being pro-white-collar criminals. No one has ever said, I’m pardoning this convicted fraudster congressman because he always voted for my political party and always supported me, and that is the one and only grounds and basis of my pardoning this figure. But people insist on not getting that point: Biden used an autopen; isn’t that the same? No, it’s not? Well, I refuse to understand why it’s not.

And no one has ever said, I’m imposing tariffs on one of America’s closest allies, Canada, because I’m upset that they made a TV ad that implied that Ronald Reagan was a better president than I am.

[Frum-Nichols Discussion starts]

Frum: Imagine yourself—I don’t know that such a thing could ever happen—but imagine yourself a malign and criminally intended president who wanted to remake the U.S. military as a tool of personal power. How would you go about doing it?

Nichols: In this system of government in the United States, the first thing I would do is seize the Justice Department. And by seize, I don’t mean being elected and nominating an attorney general; I mean flushing out all of the people committed to the Constitution, the rule of law—you know, the lawyers. It’s almost a trope now to do the Merchant of Venice line, but you start with getting rid of the lawyers, if you’re going to do these kinds of things, and you replace it with your cronies. You replace it with people that are going to be loyal to you.

Frum: So the first move at the Pentagon is not at the Pentagon; it’s across the river at the Justice Department.

Nichols: Exactly. Because if you’re a military officer, the people that you’re gonna want an opinion from are lawyers—which is the next step, which is you not only get rid of the lawyers at the Justice Department; you do what Trump’s already done: You get rid of the top lawyers of the Pentagon.

And look, the rule of law requires lawyers and people to interpret the law, and the first people you have to get rid of are anybody who says, My loyalty is to the rule of law, the statutes as written, the Constitution, and not to Donald Trump.

Frum: If you’re a three-star or a four-star general and you have a question, Is this a legal or an illegal order?, who do you ask?

Nichols: Well, you would ask the top legal service adviser in your branch, but Secretary of Defense Pete Hegseth and Trump have fired them all. 

Remember that officers are required to begin from the presumption of legality with an order. The system is designed to make sure that the chain of command functions effectively so that if you’re a colonel or a one-star or a two-star, you have to assume that if the order has come down from the president to the secretary, the advice of the chairman—the chairman’s not actually in the chain of command, but he gives advice—and by the time it gets to you, the assumption is: Well, this must be legal because all these other guys wouldn’t have ordered me to do it.

Frum: So if you get an order to blow up a fishing boat in the Caribbean or the Pacific, you would start with, Well, somebody must have signed off on this. They must have—

Nichols: Somebody signed off, exactly. And the place it should have stopped, of course, is: The attorney general, the secretary of defense, the chairman of the Joint Chiefs should all be standing in the Oval Office, saying, You can’t do this. This isn’t legal. This is a violation of both American and international law. And if the president says, Well, go ahead, just do it, well, by the time it gets to that lieutenant commander in a helicopter or piloting a drone, he or she’s already saying—well, as you just said, David—Somebody must have signed off on this.

Frum: Well, the president of Colombia has charged that at least one of the destroyed boats was a fishing vessel with completely innocent people aboard. Now, the present president of Colombia is kind of a flaky character and certainly someone with strong anti-American feelings, so take that as it may. On the other hand, it would be a pretty bold lie to tell, that it’s a fishing boat, because the United States could refute it.

Nichols: Now, the thing is, Donald Trump learned—as we painfully know—he learned from his first term. He’s making sure that there isn’t going to be anybody in that room who’s gonna say, Mr. President, it’s a bad idea. What you’re doing isn’t legal. 

Frum: How does the National Guard fit into the chain of command? We remember in his first term, Trump wanted to use the National Guard or other military personnel to shoot lawful demonstrators. He suggested shooting them in the knees. 

Nichols: Once again—and we know this, again, from the first term—in the first term, it was the secretary of defense and the chairman, again, walking in and saying, Mr. President, don’t do this. This is a bad idea. The National Guard answers to the governor of the state they’re in until the president orders them federalized. And, of course, that’s been the source of multiple court cases, some of which the Trump administration keeps losing or running into injunctions—

Frum: Because you can’t just do it as an act of power. You have to show some basis—

Nichols: Right. You can’t just say, Today, I feel like nationalizing our federal guard—the National Guard, excuse me.

The president has huge amounts of latitude here, which is why he’s going after the National Guard because, obviously, when he talks about using the regular military, then he has to talk about—I mean, we’ve run into Posse Comitatus and the Insurrection Act. That’s why, I think, he’s talking about invoking the Insurrection Act.

Frum: So I wanna go back: Who has the mission? So the South Carolina or Texas National Guard is called up, sent to a blue state, and is told something like, We think a lot of the people in this lineup in this swing suburb are probably illegal aliens. And we think they should be detained for 12, 14, 16 hours, or ’til whenever the polls close. Your order is to go detain these people we believe are illegal aliens—I mean, they’re Democrats; they might as well be illegal aliens—detain them and hold them until the polls close. Who has the mission to say, That sounds like kind of an illegal order to me?

Nichols: Well, but they’re being much more clever about it than that. The mission to detain those people and to disrupt those operations goes to ICE. And then the president says, This being a federal agency, I’m not using the military to detain any of these people. I’m simply using the military to protect these other federal agencies while they do their job—

Frum: —of detaining everyone in the voting line—

Nichols: Of detaining everybody in line. It’s very clever. They say, We’re not doing domestic policing. We’re simply securing federal installations, protecting federal employees because the state or the local municipality either can’t or won’t do it.

And I’ll just add one more thing, David. I never thought the Epstein files were important until Trump started acting like they were important. Why do we think the Epstein files are radioactive? Because Trump’s acting like it.

Frum: Well, let’s revert to this conflict in the Caribbean, the Pacific, and Trump has mused about taking it to land. And Venezuela seems to be target A; Colombia has also been indicated as a target.

 How much legal authority would a president need to start carrying out land targeting of cartel operations?

Nichols: More than he has now.  Trump is arguing that I can simply determine a threat, point the military at it, and say, “Destroy this.” That is not what Article II says. That is not what the Constitution says.

And I think, first of all, can we just step back and say, What happened to the guy who said, I’m not gonna start any more “stupid wars” like all my predecessors? 

We’re talking about invading Central America, Latin America? It’s bonkers. But I don’t think that he has anything like the legal authority to do this—but that would require a Congress that actually meets and functions as a Congress.

Why not counterfeiters? Why not bootleggers? Why drug black marketeers? Why not just start killing anybody that you happen to think is doing something bad to the United States? And I think he’s doing this—well, I think the link between what he’s doing overseas and the link to domestic politics is very clear. He’s trying to establish the precedent that the military will do what he says, kill the people he wants killed, and undertake the operations he wants undertaken, no matter where they are.

Frum: And I think with the drug case, he’s also trying to make Americans falsely believe, as he often does, that their domestic problems are the fault of foreigners.

Nichols: Of other people, right.

Frum: One of my favorite drug war stories is a story that is told both by Daniel Patrick Moynihan and by George Shultz in their respective memoirs. But the story is that Daniel Patrick Moynihan—you probably know the story—was the first federal drug czar in the Nixon administration. That is, Nixon created an office in the White House, Office of National Drug Control Policy, Moynihan was put in charge, and he became known as the drug czar. And in 1971, the United States executes the largest—in cooperation, I think, with the French police—the largest drug bust in the history of the world to that date: the famous French Connection that became the basis of the Gene Hackman movie—

Nichols: Popeye Doyle, baby.

Frum: So Moynihan is very excited when he gets word, and he commands a helicopter to take him to Camp David to brief the president personally about this tremendous victory, and as he gets into the helicopter, there is Secretary of Labor George Shultz, with the big helicopter earmuffs, reading the Financial Times or The Wall Street Journal. And Moynihan, over the helicopter communication device, just gushes with enthusiasm: We’ve just completed the biggest drug interception in the history of the world. And Shultz, utterly uninterested, says, Congratulations. Nice job. You don’t understand, says Moynihan. This is the biggest drug bust in the history of the world.Good, [says Shultz], congratulations. And Moynihan’s a little hurt, a little crestfallen. And then he remembers, before Shultz went into government, he taught economics at the University of Chicago: George, I imagine you think that so long as there’s a demand for drugs in the United States, there will be a supply from somewhere. And Shultz now looked up interested for the first time and said, There may be hope for you after all.

Nichols: It’s a great story.

Frum: —and the point is, Americans were dying in very large numbers from fentanyl overdoses in the teens. It came to a peak in 2020. And then, thanks to different policies, thanks to the availability of drugs that interfere with drug overdoses, those numbers have come down a little bit. But it remains an article of faith to Trump and the people around him and especially to Vice President J. D. Vance: This is something that bad foreigners have done to Americans, not that Americans are doing to themselves. And if we can only punish the foreigners enough, virtuous Americans will not be lured into drug dependency. But that’s, of course, not how it works. It’s the demand that brings forth the supply. It’s a domestic problem.

Frum: The War on Drugs—I think we didn’t use so much War on Drugs analogy—the logic of the “Just Say No” campaign that was publicized by Nancy Reagan was, that was an attempt to address demand. It’s a triangle—there are three basic remedies, or outcomes, to the drug problem. One is you attack supply. The second is you attack demand. And the third is you learn to live with the drugs. And all of them are evil, right? Learning to live with the drugs means Americans suffer and die in preventable numbers. Dealing with the demand means that Americans go to prison because you punish both the low-level dealers and the users. And the supply means that you end up at war with the rest of the planet and trying to put your fingers in infinite numbers of holes in dikes as the drugs flow in. All of them are imperfect, and sound policy begins with some kind of balance.

Mish: To reiterate … Dealing with supply “means that you end up at war with the rest of the planet and trying to put your fingers in infinite numbers of holes in dikes as the drugs flow in.”

Sinking a few boats, illegally or not, in Venezuela or Columbia is not going to do a damn thing to halt supply.

Frum: But the Trump policy is to say, Look, we are going to blame entirely suppliers, and not only suppliers, but foreign suppliers, and we’re going to kill them, and we are going to imagine that this is doing something, when, of course, as George Shultz will tell us—

Mish: Nichols now gets to the real point of it all: Politicized stupidity obscures the real threat. What’s it really about?

Nichols: That’s because it’s not about drugs. I’m convinced that this policy in Central America is not about drugs, David. I think it’s about—

Frum: Training the military to do bad things.

Nichols: Right. I don’t think Donald Trump cares a whit about fentanyl and drugs coming into the United States. I think Donald Trump lives in a world where everything is graded in terms of How does this affect me and help me and help my political fortunes? And other people—J. D. Vance knows better. He tried to set up a nonprofit about this and then kind of walked away from it. Everybody knows that this is not the game. And I think it’s not just to blame it on foreigners, which, of course, is a classic kind of MAGA world grievance issue, right? If you’re unemployed, it’s because of the Chinese. If your kid is in the basement playing video games all day, it’s because of evil programmer somewhere. If your kid’s taking drugs, it’s ’cause of the Mexicans.

Every time Trump seems to run into something he can’t solve, you can almost see him saying, Well, maybe the Army can do this.

I think there’s two reasons for it. One is, he is childlike; he is fascinated by displays of military power in the way an 8-year-old is. But also he’s figured out, the whole rest of the federal bureaucracy can slow-roll him, can object, can rat him out to Congress. He is really counting on the military to be the people who keep his secrets, execute his orders, do what they’re told. I would really like to know why this four-star in charge of Southcom retired early. If it was under protest, I think he should tell the nation.

Frum: If there are air strikes on the Latin American or South American or Mexican mainland, innocent people are certain to be killed because air strikes are so imprecise, even the best. Trump, from the beginning of his administration, began flying drones over Mexican territory without notifying the Mexicans. This was reported by CNN. The Mexicans found out from American news media. And then, because of the enormous pressure on the Mexican government, they hastily gave permission for something that they didn’t know about.

But the drones they are flying are Predators, which can be armed and may be armed. Now, so far, there have been no strikes, and so far, the reports are that the drones remain, to date, not armed. But that may or may not be true, that may or may not be up to date. And sooner or later, there may be a Predator drone strike inside Mexico. There may be a bomber strike inside Colombia, maybe one inside Venezuela. At that point, we’re into a bigger conflict. Well, is there anything inside the military that says, I need to see some paper here, sir, from Congress, from somebody?

Nichols: —the thing is, if you strike an unmarked boat in international waters, you can sort of slip under the kind of, like, Well—you can hand-wave away a lot of stuff—it’s piracy. They were bad guys. We thought they were gonna shoot at us. You can make up a lot of stuff.

If you attack a sovereign nation and its territory, it’s an act of war.  Attacking Venezuela or Mexico, there is absolutely nothing, no legal cover for that. And I don’t know how Americans would respond to a president who said, I’m gonna keep us out of war, and I don’t know how the military is gonna respond to a president who said, I’m gonna keep us out of war, and now I’m ordering you into combat as a war of discretion to take out people who are not—

But I think, going back to the domestic environment, the election will come up next year, and Donald Trump’s gonna say, How can you dare criticize me or anybody else when this country’s at war and our brave boys are overseas fighting the drug lords like Arnold Schwarzenegger and Steven Seagal hitting the beaches in Commando?

Frum: I wrote a dystopian novel a long time ago in which the background of the novel is this long-running war inside Mexico that no one can quite remember how the United States stumbled into, but it can’t find any way to get out of. And as Americans have discovered, these kinds of conflicts are easy to start, hard to end. It’s hard to define an end state.

Nichols: I was talking with friends who have to teach this stuff at both military and civilian institutions, and it’s like, how do you teach the American national security process now? There isn’t one. It’s whatever Donald Trump—it’s all vibes, right? It’s whatever Donald Trump feels at any given moment. And the problem is that he has—it’s a problem for us; it’s an advantage to him—that he surrounded himself with people who say, I am anticipating that he wants to do this. I will always have a plan ready to say, “You bet, boss. I got a plan for striking Venezuela.”

And I don’t think they’ve thought it through. I don’t think they care about thinking it through, David. I think they wanna be able to say, America’s at war. Anybody who opposes the president is a traitor.

Frum: Last question before I let you go, with gratitude for your time: Greenland. The United States must have a plan for invading Greenland. American troops are deployed to Greenland in March of 1941, before the United States entered the Second World War, to secure Greenland against use as a German U-boat base. They operated with the approval of the local Greenland authorities. Denmark was then under Nazi occupation, so the Danish government was surely not displeased. And during the Cold War, there were always war games about, Well, what if the Soviets made a move on northern Greenland? So there must be these plans now. What happens if you tell an American officer, I wanna carry out a military attack on the territory of a NATO ally? Do they raise an eyebrow, or do they just do it?

Nichols: (Exhales.) I think you’ve finally gotten to a scenario that is so crystal clear—and maybe years of teaching military officers has made me too optimistic—I have to think that there are, even at lower levels, there are gonna be officers who are gonna say, I’m not doing that. I’m not killing—

Frum: Because they understand a treaty is a law in the United States.

Nichols: I want to believe that an attack on a NATO ally would spark an internal revolt within the United States and the U.S. military. I want to believe that. Will it happen? It depends on how many people are watching TV at any given moment, I guess.

Frum: I’ll leave you with this thought. Secretary of the Treasury Scott Bessent recently gave an interview, I think, on one of the financial channels where he talked about the American strategy on dealing with China, and he said, We’re going to mobilize our allies to work with us. Mobilize our what? Our what? 

Nichols: Well, we’re getting to the point, I hate to say, that—I used to take pride—so much of this has been humbling for an Atlanticist and an American exceptionalist like you, like me. It’s humbling to say, I used to take pride in the fact that the Russians had no friends in the world and the Americans had plenty, right? Part of the reason Russia was always, even after the Soviet Union, Russia was always in the mess it was in: because they don’t have friends; they have clients. It’s all very transactional.

We’re becoming that. We’re becoming this kind of friendless, powerful state that just has clients.

But right now, the president—and this is a problem for civil-military relations—the president is saying, We don’t really have any friends. You have me. I’m the commander. And if I tell you to attack somebody to whom we are bound by history and treaty, you’re gonna do it anyway.

Remember when he was asked about torture in the first election, and he said, Well, if I tell the generals to do it, they’ll do it. Well, the military pushed back and said, We won’t do that. And I think, to this day, he didn’t like that answer.

Here we go again. Trump threatens to be the world’s policeman.

My answer is no. Trump’s answer is yes.