An updated version of this essay appears in our Fall 2025 issue under the headline “Stupefaction by Law.”

Atop its other outrages and illegalities, the Trump administration has taken to murdering boatloads of presumptively innocent people on the open seas. They’ve done it three times now and promise to keep at it. At a recent rally in Michigan, Vice President J. D. Vance joked, “I wouldn’t go fishing right now in that area of the world.”

Having litigated for much of my career against executive overreach, I strongly suspect that, before the killings started, some lawyer in the now all-but-empty halls of the Justice Department drafted a dense, footnote-studded memo that purports not only to justify this killing but to establish its lawfulness. These memos surface whenever someone in the executive branch is poised to do something that everyone knows is illegal. Before acting, they commission a morally parched lawyer to draft a memo that says it’ll all be okay. That was the purpose of the infamous “torture memos” drafted by John Yoo for the Bush administration, for instance, which pretended to prove that strapping a person to an inclined board and flooding water up his nose and down his throat to bring him within sight of his own death is perfectly compatible with the law.

It is possible that the Trump administration began its killing spree without first creating a paper trail; after all, this is an administration that looks at legal process the way a cow might look at leather boots if it knew how they were made. But that would be unusual, and there is at least some reason to doubt it. We know, for instance, that in July, the president signed a still-secret directive that ordered the Pentagon to use military force against Latin American drug cartels. The odds are good that this is either the memo I have in mind, or much more likely, that the July directive distills the conclusions of a legal memo that was written beforehand. Either way, I would be very surprised if the memo I’m describing does not exist.

These memos are not particularly difficult to draft; a reasonably competent second-year law student with a Westlaw account could write one. It wouldn’t be compelling as a matter of law—in fact, it would be legal drivel—but it’s not meant to be compelling. It’s meant to establish conclusively the appearance of lawfulness. This supplies a defense in case someone were so crass as to suggest that those responsible for the crime should be prosecuted. But since a prosecution would never be more than a fantasy, cutting it off at the knees is not the true reason these memos are conjured into existence.

More importantly, the memo is meant to establish that what took place was legitimate—that it was morally just. This may strike people as peculiar, since the document will not speak in what we understand as the language of moral choice. On the contrary, like the torture memos, it will studiously avoid what may sound to the American ear as empty moralizing, clinging instead to the safe but hollow conventions of legal analysis. It will cite and interpret scores of statutes, judicial decisions, treaties, executive orders, and learned treatises. Then, it will draw distinctions, make analogies, and reach conclusions. In short, it will look like what we call legal reasoning and will be sufficiently proximate to the real thing as to allow politicians and partisans to seize it as irrefutable proof of legality. They will hold the memo aloft and say, as they always do, “Quit your damn whining and fatuous accusations. It’s all perfectly legal.” Counterarguments that the memo is nothing more than blather on stilts will be dismissed as proof of the obvious: lawyers, like economists, disagree. Nothing to see here.

Of course, supposing the memo does exist and eventually comes to light, very few people will actually read it. Fewer still will study the many sources it cites; even fewer will claim any expertise in the seemingly esoteric legal principles it invokes. Critically, the people who draft the memo know all this. Indeed, they rely on it. They know full well that the memo will not be read and studied as a legal document—at least, not in the way a buyer and seller might study a contract to sell and buy a home. Instead, the authorities rely on the memo’s mere existence to establish their essential point, which is that everything is as it should be and that no one should be alarmed by what has been done. In that way, the document is not meant to be law. It is not meant, in other words, to be the neutral application of principles applied in good faith to resolve a dispute between parties over contested rights. Rather, it is meant to look like law, and by its existence, to establish legitimacy.

All of this has three baleful consequences, which are assiduously ignored in public debate.

First, by cloaking naked power in the trappings of the law, the Trump administration, like the Bush administration before it, channels objections to its behavior into sterile disputes about who has the best lawyers—a dispute that no one really expects to resolve. In fact, that channeling is already well under way; after the first bombing, the Miami Herald ran an article with the headline, “The U.S. blew up a drug boat in international waters. Was it legal?” It predictably consisted of experts on the left arrayed against officials in the administration. Think tanks quickly followed suit with their own analysis; both sides claim to have the better of the legal argument, and practically speaking, that’s the end of it. Simply as a matter of law, the administration’s argument is silly; there is no legal principle that authorizes the killing of presumptively innocent people on the high seas, and no amount of hand waving will transform the victims into “combatants” who may be lawfully targeted with lethal force, which is the linguistic legerdemain relied upon by the administration to drag this dispute into the domain of lawful warfare. But presumably, they have a lawyer who said otherwise, and for their purposes, that is more than enough.

Second, by shunting objections into the dead-end of legality, the administration obscures its grotesque abuse of power. In Western democracies, law is power’s voice. That is especially true in the Trump administration, which relies on executive orders to transform society in a way that it could never achieve if it condescended to use the law-making apparatus contemplated by the Constitution—which is to say, through Congress—and which flouts judicial review as a threat to its authority. In February, Vance wrote on X that “judges aren’t allowed to control the executive’s legitimate power.” This tautology too is a piece of legerdemain, meant to insulate political power from critique.

Finally, reducing this controversy to a debate about the law intensifies the ongoing moral stupefaction of the American public. In a theocratic society, disputes are resolved by invoking a holy book; in our society, which claims to worship the rule of law, disputes are resolved by invoking the legal authority to act. The ultimate touchstone of this authority is the Constitution. In the United States, when people wonder whether something is right or just, they are not met with an answer that proves rightness or justice. Instead, they are told that it is legal, or even better, that it is constitutional (or, for some partisans, that it was or would have been approved by “the Founders,” a nebulous group that is treated with God-like reverence and imbued with God-like infallibility). Law-speak thus substitutes for moral judgment.

In other words, we are sold the myth that the language of legality is preferable to the language of morality because it is impartial and fixed. But as this whole dispute makes plain, that is least apt to be true precisely when it matters most. As the voice of bald power, law in this instance has no more legitimacy than any political act. Unfortunately, the longer Americans indulge this mindless preference for the language of the law over morality, the weaker their moral voice becomes. In time, they lose the ability to say, forthrightly and without fear, that what the Trump administration has done is cold-blooded murder for which they and their partisans should be ashamed. They are forced to say, pathetically, that what the Trump administration has done is unlawful, instead of insisting, without hesitation or equivocation, that it is wrong.

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