Brenner Fissell, JD, MPhil
Professor of Law Villanova University
- Villanova PA
Professor Brenner M. Fissell, J.D., M.Phil, is an expert on criminal law, especially military justice, misdemeanors, and the law of homicide
Media
Areas of Expertise
Biography
Affiliations
- National Institute for Military Justice
Select Media Appearances
Military Lawyer Swiftly Fired From Immigration Bench After Defying Trump Deportation Push
Associated Press online
2025-12-19
Brenner Fissell, a Villanova University law professor, said that there are a number of personnel actions that can be taken — letters of counseling or reprimand — that, even if found to be baseless later, would affect one’s potential for promotion and impact their discharge. Appealing such decisions, he said, is a byzantine process that can take years and require hiring a costly lawyer.
“The process can be the punishment,” said Fissell, who helps run the Orders Project, which helps provide counsel to military personnel who believe they are being asked to carry out illegal orders.
Troops Involved in Boat Strikes Face a ‘Moral Injury’ Risk, Experts Say
The New York Times online
2025-12-12
Military personnel are allowed — and, in fact, are obliged — to refuse illegal orders. But to do so would probably result in swift punishment, while determining the actual legality of the order could drag on in court for months or years, according to Brenner Fissell, a law professor at Villanova University.
When a legally dubious order is given, he said, “the individual is in a horrible bind: If they refuse, they will likely immediately be charged with a crime, maybe put in jail. At some point, maybe, a judge may realize they were right, but at that point they have lost their job and become an outcast.
Is It ‘Seditious’ or ‘Illegal’ to Urge the Military to Refuse Unlawful Orders? Legal Experts Weigh In
TIME online
2025-11-25
“They did not encourage unlawful action,” Brenner Fissell, professor of law at Villanova University Charles Widger School of Law and vice president of the National Institute of Military Justice (NIMJ), says of the lawmakers in the video. “They were not encouraging the disobedience of lawful orders; they were encouraging the disobedience of unlawful orders. And that is a correct statement of the law.”
Pentagon threatens to prosecute Senator Mark Kelly by recalling him to Navy service
Reuters online
2025-11-25
Kelly lacks the protections of Speech and Debate Clause immunity, Fissell said, which protect lawmakers for statements they make on the House or Senate floor.
"If they're serious and they're planning on charging him with mutiny, sedition, it seems like they would definitely try to book him in a pre-trial detention if they believe it's that serious of an offense," Fissell, a former defense counsel at Guantanamo Bay Military Commissions, added.
Trump wants to deploy National Guard troops in Chicago and Portland. Can he do that?
Associated Press online
2025-10-07
A key issue in the lawsuits brought by states and cities seeking to block the deployment of National Guard troops in their communities is whether a president’s determination is final on whether there is a danger of rebellion, or that the laws can’t be executed with “regular forces.”
The law requires that the conditions actually exist, noted Brenner Fissell, a Villanova University law professor who is also vice president of the National Institute of Military Justice.
The law is clear: Trump can’t use the military to police America’s streets
The Hill online
2025-09-10
As Chicago braces for an influx of federal troops, it is critical to focus on last week’s ruling by a federal district court stating that President Trump’s June deployment of the National Guard to Los Angeles violated federal law. As national security experts who filed an amicus brief to support California’s challenge, we strongly support the holding of this case that the president has no authority to use federal troops to police America’s cities.
Judge says Trump administration’s use of US military in Los Angeles violated federal law
CNN online
2025-09-03
Brenner Fissell, the vice president of the National Institute for Military Justice, said while Breyer’s ruling has no immediate impact outside of California, it’s certain to be the first thing other judges who may preside over similar cases will turn to.
“If I were a district court judge, I’m going to study all this. And it doesn’t bind me, but it’s the treatise that you’re going to go to,” said Fissell, who is also a law professor at Villanova University. “It’s the most learning on this issue that we have had in decades, and for some of these statutes, it’s the only judicial interpretation of the statute. So it’s a big deal.”
US judge blocks Trump from using troops to fight crime in California
Reuters online
2025-09-02
"It's going to be highly influential for any challenges in other cities," said Brenner Fissell, a professor at Villanova University Charles Widger School of Law. "If a judge doesn't agree with this, he's going to or she's going to have to explain why."
Can troops be deployed to the polls should the worst occur on Election Day?
The Hill
2024-10-27
The Posse Comitatus Act forbids use of the military in domestic law enforcement. In this context, an exception — the Insurrection Act — would, in theory, allow a president to use troops in civil law enforcement domestically to suppress a “rebellion or insurrection.” But there is an exception to the exception.
A little-known statute known as Section 592, which Congress passed in 1865 and President Lincoln signed into law, speaks directly to this issue. Section 592 forbids the use of military troops at polls, “unless such force be necessary to repel armed enemies of the United States.”
Legal experts dissect Philly DA Krasner’s impeachment trial challenge
KYW Newsradio radio
2022-12-09
Villanova Law School professor Brenner Fissell says the Pennsylvania Constitution sets different rules than those at the federal level, so it remains to be seen what role courts will play.
“Are they going to follow the federal model and completely let the legislature handle impeachments without any judicial oversight, or are they going to actually get involved?” Fissell said. “That's going to be up to the Pennsylvania courts.”
Select Academic Articles
The Ethics of Military Influence on Politics
Georgetown Journal of Law and Public Policy2025
While the standard position is that the military should be “apolitical,” this limitation does little work in helping senior officers understand permissible conduct. A more promising line to draw is between advocacy and advising, with the former seen as more violative of the civilian control norm. This essay argues that military officers’ advocacy on political issues is presumptively illegitimate, but not always so.
The Military's Constitutional Role
103 North Carolina Law Review2024
A basic principle of the American constitutional order is that civilian authority must be supreme over that of the military. But why is so-called “civilian control” of the military so important? This Article takes up that task, using contemporary political theory to defend the principle of civilian control.
Equal Supreme Court Access for Military Personnel: An Overdue Reform
The Yale Law Journal2021
Federal law currently provides for direct Supreme Court review of criminal convictions from almost all American jurisdictions, but not of most court-martial convictions. For them, an Article I court can veto access to the Supreme Court. This Essay argues for elimination of that veto.
