“Legal Insurrection?” How Stephen Miller's Rhetoric Undermines the Rule of Law

Featuring listener questions from this week’s episode of Stay Tuned

(Photo by Spencer Platt/Getty Images)

Today, I want to share two questions I got on Stay Tuned that really resonated with me because they get to the core of what we should expect from those in power and what the law demands of us.

The first question came in an email from Lily:

Hi Preet, I’m a mom in Portland with two kids and the judge’s rulings here reminded me of parenting. When I tell my kids they can’t play with the iPad, they immediately try to grab my phone. When the judge told the Trump administration they couldn’t federalize the Oregon National Guard, the administration immediately tried to send in another state’s guard. Is there a judicial equivalent of giving a full grounding?

I don’t think it’s quite the same thing as a grounding. But, I do think a lot of parents can maybe relate to U.S. District Court Judge Karen Immergut in this situation.

For context, in late September, President Trump posted on social media that he was directing Pete Hegseth, Secretary of Defense, I mean, War, to send troops to protect what he called “war ravaged” Portland from Antifa and other domestic terrorists. This was presumably to protect an ICE facility that was the location of some protests. The next day, Secretary Hegseth ordered the federalization and deployment of 200 members of the Oregon National Guard. That same day, the state of Oregon and the city of Portland filed a lawsuit to stop it. They had not blessed the deployment, as has been customary, in almost all past deployments in our nation’s history.

A week later, on Saturday, October 4th, Judge Immergut granted a temporary restraining order, temporary being the operative word, blocking the federalization of those Oregon Guard members. In her ruling, she noted that the president’s claims about conditions in the city were “simply untethered to the facts” and that the protests at the ICE facility are “not significantly violent or disruptive.”

The judge based that ruling on her interpretation of a particular statute, Title 10 United States Code, Section 12406, which requires, for the purposes of bringing out the National Guard to federal service, a “rebellion or danger of a rebellion against the authority of the government of the United States.” There are various other provisions as well. And she found those conditions were also not met. But her ruling is preliminary, pending the admission of further evidence and further proceedings in the case.

But the story didn’t end there. On Sunday, October 5th, the Pentagon announced it would instead send guard units from other states into Oregon. I don’t think you have to be a lawyer, or have a law degree, to guess that was a little bit too cute by half. Judge Imergutt remarked in court that “it seems to me that based on the conduct of the defendants, and now seeking national guard from Texas to go to Oregon, again, I see those as in direct contravention of the order that was issued yesterday.”

And so, unsurprisingly, the judge issued a second emergency order, this one blocking the relocation, federalization, or deployment of guard troops from any other state.

Now, I will say, in my view, and I think in the view of many people, the judge’s ruling was unremarkable. You can disagree with it, you can criticize it, you can say she could have ruled the other way, but it’s fairly unremarkable. Certainly, her ruling is less remarkable than the president’s calling up of national guard outfits in state after state after state without consultation with or the consent of those jurisdictions.

But Trump’s loyalists and supporters don’t see it that way. And that leads me to the next question, which comes in an email from Jamie who writes:

Preet, did you see Stephen Miller’s post on X about the Oregon judge’s ruling? He sounded a little worked up. Does he have any legal ground for all that outrage or is this just political theater?

I’m afraid it’s much worse than political theater. Trump adviser Stephen Miller, as you mentioned, recently took to X to label that federal judge’s ruling itself 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 any more 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 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. What? To these two 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 you disagree with. 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: Judge 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 U.S. attorney appointed by another Republican president, George W. Bush.

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 use 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 co-equal 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 in 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, has himself 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 a judge’s ruling is not an act of war. Legal insurrection is a null phrase, a cynical soundbite. 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.