If I were still teaching a course on constitutional law, I would use President Donald Trump’s decision to send troops into cities as a classic example of an issue whose resolution is unpredictable. There are arguments on both sides, many of which are fact-specific and depend on constantly changing circumstances.

A few conclusions are fairly clear:

First, under Article 2 of the U.S. Constitution, the president clearly has the authority to send federal law enforcement officials to protect federal buildings or federal officials from danger. Moreover, the president gets to decide, subject to limited judicial review, whether such dangers exist. State and city officials cannot interfere with the proper exercise of such federal authority.

Second, and equally clear, is that if there is no federal interest that requires protection, the president has no authority to intrude on purely local matters, such as street crime. The 10th Amendment and various statutes leave local law enforcement entirely in the hands of the states.

Third, the president has greater authority over Washington, DC, even with the District of Columbia Home Rule Act of 1973, than he does over other cities.

Fourth, there are limited situations in which the president has authority, even if there is no direct federal interest in protecting a federal building or authorities. One such instance is an “insurrection.”

Yet the law is unclear as to a) the definition of an insurrection; b) who gets to decide whether an insurrection, however defined, is ongoing; and c) what is the proper role of the judiciary in reviewing a presidential decision that an insurrection is occurring.

The same is true of an invasion. This is somewhat easier to define, but there will be close cases, such as a dictator sending hordes of illegal immigrants to destabilize a nation.

How do we legally define what’s happening now?

n a democracy, especially one with a system of checks and balances and a division of power such as ours, the question almost always comes down to who gets to decide? Our legal system recognizes the possibility ‒ indeed, the likelihood ‒ that whoever gets to make that decision may get it wrong.

So the issue becomes: Who has the right to be wrong? In most democracies, especially those with unitary parliamentary systems, the right to be wrong belongs to the elected branch of government ‒ namely, the legislature. At the federal level, that’s Congress, under Article 1 of the Constitution.

However, since the Supreme Court’s decision in Marbury v. Madison in 1803, all legislative decisions are subject to constitutional judicial review. Even a majority of the voters or their legislators are not empowered to violate the Constitution.

And if the Constitution is unclear, ambiguous or even inconsistent? I have a cartoon hanging in my office showing one of the framers saying to the others: “Just for fun, let’s make what is or isn’t constitutional kind of wishy-washy.”

Well, on the issue of presidential power to send troops into cities over the objection of local politicians, the Constitution is kind of “wishy-washy.” To paraphrase former Supreme Court Justice Potter Stewart, when he discussed hardcore pornography: “Perhaps I could never succeed in intelligibly (defining it), but I know it when I see it.”

The same may be said of an insurrection. It’s hard to define in advance with any degree of precision except at the extremes, but not so difficult to identify if one sees it.

The legal endgame here isn’t clear, either

The Civil War was an insurrection. Anti-Israel protests on campuses were not. But what about the violence in cities like Portland, where left-wing protesters burned cars and buildings and blocked access in 2024?

Some of these groups would love nothing more than to incite an insurrection, but they lack the power, at least at the moment, to garner sufficient support for anything broader than a violent demonstration or riot.

Does the president have to wait until these quixotic “insurrectionists” have garnered such support? Or can he take preventive steps that include sending in federal law enforcement officials? What about federal troops? Is that different?

These questions will eventually make their way to the Supreme Court, which is likely to try to defer broadly based and categorical answer as long as possible. In the meantime, district judges in cities across the country will rule against the president, except in cases involving protection of federal buildings, federal officials and the nation’s capital.

The president will appeal, and the appellate courts will likely split, depending on the particular circumstances of the cases.

“Wishy-washy” and “we’ll know it when we see it” are the best we are going to get in this complex situation.

President Trump’s brilliant diplomacy has resulted in freeing the hostages and implementing a ceasefire. If the truce persists, it will be a great accomplishment and an important step toward peace — if only a cold peace — in the region. It might also provide a stepping stone to a more enduring and somewhat warmer peace. Mr. Trump deserves enormous credit for his role in putting together a coalition of Arab and Muslim states and in pressuring both sides to accept what they each understandably regard as compromises.

It is important to note, though, that Israel’s decisive military victories in Gaza, Lebanon, Syria, and Iran were the essential prerequisite to Mr. Trump’s accomplishments. These victories, which were extremely costly to both sides in human lives, made it possible to pressure Hamas to accept an agreement which many Hamas supporters regard as near-suicidal to the organization.

Because of Israel’s spectacular military accomplishments, Hamas lost the support of its major allies, especially Hezbollah, Syria, and Iran. It was also in the process of losing support among Palestinians, particularly in Gaza, because of the enormous toll the war, started by Hamas, exacted from civilians. Without Israel’s military successes combined with Mr. Trump’s diplomatic pressures, Hamas would still be fighting, the hostages would still be in Gaza tunnels, and there would be more bloodshed and death on both sides.

Had Israel followed the terrible advice it was offered by the Biden administration, by the New York Times’s opinion pages including the nearly always-wrong Thomas Friedman, by American left-wing academics, by CNN pundits, and by others who counseled “restraint,” Israel would not have entered Rafah.

Israel, too, would have abandoned the Philadelphi corridor; it would never have bombed Iranian nuclear facilities; it would not have aggressively gone after Hezbollah and other Iranian surrogates in the region; and it would have agreed to a cease-fire on disadvantageous terms.

Even if it had followed this awful advice, the anti-Israel and antisemitic demonstrations around the world would not have diminished, because they were not designed to help Palestinians, but rather to hurt the nation-state of the Jewish people. Israel was wise to ignore the ignorant and bigoted condemnation and name calling that it has endured since October 7. It was wise to focus on the only thing its enemies in the middle east understand, and that is victory through strength.

Israel’s enemies had to be convinced that the Israeli blood that was shed on October 7 was not cheap and that future attempts to shed Jewish blood — whether in the Middle East or around the world — will be responded to disproportionately. The message Israel has sent is that for every Israeli life that is taken by terrorists, multiple terrorists’ lives will be taken, even if that requires some collateral damage to non-terrorists who support or cheer-on the terrorism.

This justly disproportionate payback will not be deterred by these terrorists hiding behind human shields. Nor will it be deterred by fear of bigoted and one-sided condemnation of Israel by antisemites. Whatever legitimate criticisms may have been directed at Israel overreactions, were drowned out by the illegitimate condemnation of Israel for doing what every democracy would do and has done.

The only response terrorists understand is making them pay a disproportionately heavy price for endangering Israeli life. Hamas leaders have threatened to repeat October 7, over and over again. Israel has counter threatened that if they try to repeat October 7, Israel will repeat the two years that followed it, including the targeting of your leaders, wherever they are.

Deterrence through disproportionately overwhelming strength is the only way the Jewish state can live in peace and safety. It is also the only way other Arab and Muslim nations will consider making real peace and joining the Abraham Accords.

This reality — and its corollary that weakness produces aggression and death — has been proven over and over again through the millennia. As the Psalmist wrote: “God will give his people strength.” And then: “God will bless his people with peace.”

This self-evident truth was proven once again when Mr. Trump was able to bring about peace following demonstrated overwhelming strength by Israel and America. This peace will endure only as long as this overwhelming strength endures, along with a willingness to use it when necessary.

The ink was not even dry on the US Department of Justice's hastily drafted two-count indictment of former FBI Director James Comey when partisans chose sides.

Most on the "left" insisted that this was a revenge lawfare indictment with no basis in law or fact. Many on the "right" saw nothing amiss, arguing that the defendant did in fact lie to Congress.

The nonpartisan reality is that it is too early to make a full assessment of the merits or demerits of the case. The other reality is that the indictment raises several distinct if overlapping issues.

First and foremost is whether it properly alleges crimes. Put another way, if there is evidence to establish the allegations, would that evidence be sufficient for a conviction? In order to convict, the government must prove beyond a reasonable doubt that the defendant intentionally and under oath lied or deceived legislators about a material fact. So if a jury were to conclude that Comey knew that he had authorized an FBI assistant to leak material, his negative answer to a material question from Senator Ted Cruz might well be found to be a crime. Complicating matters, the assistant apparently referenced now denies that Comey was aware of the leak. Perhaps someone else was involved, such as a law professor through whom Comey allegedly laundered leaks. In any event, factual issues are for juries to resolve.

Second, Comey's lawyers are sure to argue that even if Comey did cross the line into criminality, he would not have been indicted if he had not alienated President Donald J. Trump.

The defense of selective or targeted prosecution is generally difficult to establish in the courts of law because of its inherently speculative nature, as distinguished from the courts of public opinion. But Trump's statement demanding that Comey be prosecuted might make it somewhat easier in the eyes of a sympathetic judge.

Third is whether Trump's statement so poisoned potential jury pools that a fair trial is impossible in northern Virginia.

Fourth is whether the trial should be held in Virginia rather than in the District of Columbia. The crimes charged are geographically complex. They involve an answer, which took place in Virginia, to a question asked in DC. Comey was home with COVID and was answering remotely. The constitution requires that the trial be conducted in "the state and district wherein the crime shall have been committed." The crimes alleged here were not committed by the general answer alone -- essentially a simple denial -- that was given in Virginia, but required the more specific question asked in DC, indicating what he had illegally done. Comey would almost certainly prefer a DC jury to a northern Virginia jury, but the district court is likely to rule that enough of the crime was committed in Virginia to justify it being tried there.

Before the case reaches a jury, the judge must make several critical rulings. To begin with, the defendant will probably seek a bill of particulars specifying the precise nature of the alleged lies, leaks and testimony comprising the alleged crime. The indictment itself is bare-bones, obviously rushed to beat the statute of limitations, which was imminent. There is also likely to be a superseding indictment that will provide more specificity.

Beyond all these important legal and constitutional issues lies the overriding ethical issue of whether this case would have been brought if the shoe were on the other foot -- if the same acts had been committed by a friend rather than an enemy of the administration. The same question can be asked of the prosecutions that targeted Trump, especially the Manhattan prosecution regarding hush money payments. There was simply no crime there. The prosecutor had to make one up. With Comey, there is a claimed crime. The question is, did he commit it?

Lawfare and selective prosecution are fundamentally wrong. It would be best if neither side misused the legal system to "get" their enemies. The Trump administration obviously believes that asking nicely is not likely to work, and that those who distort the legal system by turning it into "lawfare" must be held to account in order to stop it.