Donald Trump’s strong-arm tactics near Lafayette Square on June 1 have triggered an unnerving standoff which may augur a grave constitutional crisis: an open breach between America’s president and its military leaders.
In a damning essay, Bill Moyers described the precipitating event—Trump’s misappropriation of his authority as commander-in-chief:
He . . . includ[ed] in his entourage the secretary of defense and the chairman of the Joint Chiefs (dressed in combat fatigues), as his orderlies unleashed chemical fumes on peaceful protesters—all so that the president could use them as stage props in a photo op, holding up a Bible in front of a historic church, just to make a dandy ad for his re-election campaign.
In the days after the Lafayette Square incident, a harrowing back story emerged. To clear American streets of their largely peaceful protesters, Trump wanted to deploy active-duty troops under the 1807 Insurrection Act. The objections of General Mark Milley, chairman of the Joint Chiefs, reportedly provoked a heated argument with Trump in the Oval Office on June 1. A short time later, the area just north of the square was violently cleared of its peaceful protesters by law enforcement officers from a mix of federal, state, and local agencies: the D.C. National Guard, the Secret Service, the Park Police, and D.C. and Arlington police, with support from the FBI, U.S. marshals, and even prison guards. These officers attacked the peaceful protesters with smoke bombs, flash grenades, “pepper-ball” guns, and pepper spray (sometimes considered tear gas).
Minutes later, Milley, dressed in his fatigues, walked through the now-cleared area with Trump—becoming as much of a prop as the Bible the president awkwardly held aloft in his photo-op.
The fallout was corrosive. Reports the New York Times: “D.C. Guard members, typically deployed to help after hurricanes, floods and other natural disasters, say they feel demoralized and exhausted. More than 60 percent are people of color, and one soldier said he and some fellow troops were so ashamed in taking part against the protests that they have kept it from family members.”
Appalled by Trump’s abuse of authority, General James Mattis adjured in a statement published by The Atlantic: “When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens—much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside.”
Swiftly thereafter came what Max Boot called “an extraordinary uprising among retired generals and admirals who under normal circumstances would never criticize a sitting president.” Among this distinguished roster of objectors to Trump’s ominous power play, General John Allen, former commander of U.S. forces in Afghanistan, was especially blunt: “The slide of the United States into illiberalism may well have begun on June 1, 2020.”
But most extraordinary about these public warnings was their obvious purpose—encouraging their successors in high command to resist a rogue commander-in-chief who holds nothing sacred save himself. Wrote James Stavridis, a retired four-star admiral and the former Supreme Allied Commander of NATO:
Our active duty military must remain above the fray of domestic politics, and the best way to do that is to keep that force focused on its rightful mission outside the United States. Our senior active duty military leaders must make that case forcefully and directly to national leadership, speaking truth to power in uncomfortable ways. They must do this at the risk of their career. I hope they will do so, and not allow the military to be dragged into the maelstrom that is ahead of us, and which will likely only accelerate between now and November. If they do not stand and deliver on this vital core value, I fear for the soul of our military and all of the attendant consequences. We cannot afford to have a future Lafayette Square end up looking like Tiananmen Square.
Eleven days after the shame of Lafayette Square, General Milley responded with a forthright public apology. “I should not have been there,” he said in a video commencement address to the National Defense University. “My presence in that moment and in that environment created a perception of the military involved in domestic politics.”
Nor did Milley leave it there. Denouncing “the senseless and brutal killing of George Floyd,” he repeated his opposition to deploying federal troops to quash protests which, he added, “not only speak to [Floyd’s] killing, but also to the centuries of injustice toward African-Americans.”
But our narcissist-in-chief continues to view the military as a political prop—recalling West Point graduates during a pandemic to hear his graduation address in person. In response, over 500 West Point graduates issued their own admonition to Trump’s captive audience:
The abhorrent murder of George Floyd has inspired millions to protest police brutality and the persistence of racism. Sadly, the government has threatened to use the Army in which you serve as a weapon against fellow Americans engaging in these legitimate protests. Worse, military leaders, who took the same oath you take today, have participated in politically charged events. The principle of civilian control is central to the military profession. But that principle does not imply blind obedience. Politicization of the Armed Forces puts at risk the bond of trust between the American military and American society. Should this trust be ruptured, the damage to the nation would be incalculable. America needs your leadership.
Beneath this burgeoning drama lurks a soldier’s dilemma: When should the military defy a direct order from its civilian commander-in-chief? That such a question has ripened is a tribute to Trump’s pathology—and the deep fear of what he might do to retain power.
Our constitutional democracy rests on civilian control of the military. Hence the oath taken by all enlisted military personnel:
I . . . do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. (So help me God.)
Taken literally, this duty of obedience seems absolute. Not so. The Uniform Code of Military Justice states that military personnel must obey “the lawful orders” of a superior. Indeed, executing an unlawful order can lead to criminal prosecution.
Nonetheless, there is a strong presumption of obedience. What, then, makes an order so clearly unlawful that a soldier must resist it? According to the Court of Military Appeals in United States v. Keenan, the command must be “of such a nature that a man of ordinary sense and understanding would know it to be illegal.”
The Keenan case provides a stark example: an order to kill an elderly Vietnamese civilian. But the obligation to resist arises whenever an order violates military law, a federal statute, or the U.S. Constitution. Moreover, the order in question must not “have for its sole object the attainment of some private end.”
When the commander-in-chief is Donald Trump, such principles are not abstruse. Moreover, Trump need not follow the chain of command: As president, he can issue an order to anyone he chooses and, if one commander refuses, turn to another.
This broad authority sharpens the military’s underlying quandary: What if a president’s order is unwise or outright repugnant—but not obviously illegal?
Here Trump has considerable leverage. As the Military Times observes, there is no American custom of senior military officers resigning in protest over morally objectionable, yet ostensibly lawful, presidential orders. Further, the Manual for Courts-Martial states that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” As Christopher Fonzone observes in Just Security: “Commentators should not expect military disobedience to save the nation from simply unwise or legally contested orders.”
By nature and circumstance, Trump presents the prospect of more such orders. He is trailing in the polls; as November draws near, he may be increasingly desperate to prevent defeat by misusing his power as commander-in-chief.
Possibilities abound. Suppose, for example, Trump invokes the Insurrection Act to deploy active duty troops on the pretext of preventing disorder in a restive city. Or, perhaps, dispatches soldiers to polling places in heavily African-American precincts—claiming that he is acting to protect voters from prospective violence but, in truth, to discourage them from voting.
Such orders are not, on their face, obviously illegal. As Scott R. Anderson and Michel Paradis spell out in Lawfare, the Insurrection Act authorizes a president to deploy troops where disorder makes it otherwise “impracticable to enforce the laws of the United States”; threatens to deprive citizens of a “privilege, immunity, or protection named in the Constitution and secured by law”; or “obstructs the execution of the laws of the United States.”
That is the authority under which George H.W. Bush deployed federal troops to suppress disorder in Los Angeles following the beating of Rodney King. Moreover, our primary arbiters of legality—the courts—are unlikely to act, if at all, before the president’s directive is carried out.
As Anderson and Paradis observe, “those looking to stop Trump from deploying more federal troops to U.S. cities will likely need to look beyond the federal courts for a remedy. The primary check on use of the Insurrection Act has been political, given the unpopularity of its use—a factor that may prove particularly persuasive given that Trump is a vulnerable candidate in an election year.”
But Trump, and his party, may see the politics differently. While Secretary of Defense Mark Esper has objected to using the Insurrection Act, Trump could simply fire him. Should Trump peremptorily invoke the act, what can the Army’s senior leadership do to stop him?
On paper, not much.
The recognized alternatives are for a military leader to dissent but, if overruled, comply; to quietly resign; or, most dramatic, to resign in public protest. Moreover, in his displeasure, Trump can revoke the commission of a recalcitrant officer for any reason, placing pressure on other senior officers to comply on pain of ending their careers.
Only a resignation in protest has any chance of provoking an adverse public reaction. What is more likely to do so is something without precedent in American history: a concerted refusal by senior commanders to obey a presidential order. It seems reasonable to posit that the current outcry of former military leaders is intended to create the specter of collective resistance, and therefore to dissuade Trump from using American troops on American soil.
But what if, instead, Trump decided to rally support by bombing Iran on the pretext of protecting American lives or, at least, our national interest—much as he did in ordering the assassination of General Soleimani? The last 70 years are awash in military actions undertaken without congressional authority. And given the abdication by Congress of oversight over presidential warmaking, any military leader who defies such an order will be standing on quicksand.
The ultimate nightmare is to imagine Trump deploying nuclear weapons in a non-retaliatory attack on a foreign adversary—say, yet again, Iran. Let us stipulate that even Trump is unlikely to view launching a nuclear holocaust as a splendid career move. Still, any analysis of his nuclear leeway is revelatory—and deeply sobering.
Professor Graham Allison of Harvard, an expert in nuclear strategy, tells me that “unfortunately, the commander-in-chief has full authority to order a nuclear attack.” Consider this passage from a paper promulgated by the Nuclear Threat Initiative: “The final decision to launch is the president’s alone. Once a president makes this decision . . . a structured and automatic process begins, with limited flexibility for the actors in that process to raise legal concerns.”
As a result, warned Alex Wellerstein and Avner Cohen in the Washington Post in 2017, “recent statements by current and former four-star commanders of the Strategic Command—the branch of the military that would launch nuclear weapons were such a thing to happen—that the military would only carry out ‘legal’ presidential orders to use nukes shouldn’t be particularly reassuring.”
There are no “checks and balances” on nuclear launch decisions in any formal sense. There is no need for congressional authorization; there is no “two-man rule” for the decision to use the bomb; and although the process for initiating a nuclear attack spells out the need for “consultation” with officials such as the Secretary of Defense, they have no power to veto the order, and ultimately, their consent is not required. If President Trump wants to use one of the thousands of nuclear weapons in the U.S. military’s arsenal, the chance of anyone stopping him appears to be very low.
A presidential order for the non-retaliatory use of nuclear weapons is, of course, the most likely context for concerted resistance by the military. As Professor Allison points out, during Richard Nixon’s last days in office Defense Secretary James Schlesinger “in an act of what some would call patriotism and some insubordination” instructed military leaders to contact him should they receive “any direct orders from the president to use force, including nuclear force.”
Happily, Nixon resigned. But that ad hoc resistance by the military is our last line of defense against an unstable president dramatizes how dangerous it was for the electorate to invest Donald Trump with the awesome powers of the presidency.
This raises a final concern which, before Trump, would have evoked a dystopian political thriller: a president who refuses to leave office.
Consider, here, the very real possibility of a disputed election resembling that which we experienced in 2000. Imagine, further, the disturbingly plausible scenario posed by Professor Lawrence Douglas in his aptly titled book Will He Go?:
On election night, it gradually emerges that the electoral votes of Pennsylvania will dictate the winner. At midnight, Trump leads. But over the next several days the sluggish tabulation of mail-in ballots shows Joe Biden inching ahead.
Claiming voter fraud, Trump declares himself entitled to a second term. Flash forward to January 6, when Congress is required to certify the results of the Electoral College. Douglas imagines a Republican Senate declaring Trump the winner, and a Democratic House asserting that Biden will become president. What then?
One cannot rule out such a constitutional quandary. In 2016, Trump refused to commit to abiding by the electoral results; in 2020, he is already claiming that mail-in voting will facilitate massive voter fraud. Moreover, it seems inevitable that voting by mail will lead to delayed counts—as it did only days ago on primary night in Pennsylvania.
It is not hard to imagine Trump ordering the military to help keep him in office. Biden already has publicly discussed the possibility of Trump trying “to steal the election,” telling Trevor Noah that “it’s my greatest concern.”
Perhaps the Supreme Court would intervene. But suppose they do not—or that Trump decides to ignore the Court’s adverse ruling. At noon on January 20, the Constitution ends Trump’s original term in office; no doubt Biden would argue that Trump’s authority to give orders as commander-in-chief expires at 12:01. But what must the military do then?
Biden purports to know. Citing the number of high-ranking retired military officers who criticized Trump for using the military to clear Lafayette Square, Biden told Noah: “I am absolutely convinced they [the military] will escort him from the White House with great dispatch.”
Perhaps. But what a dreadful outcome for the military—and for American democracy. And what if, despite an apparent Biden win, the Republican-appointed majority on the Supreme Court declares Trump entitled to a second term? The military cannot save us from another Bush v. Gore, or a second term even worse than the first. One can but imagine Trump’s grandiose expressions of unchecked entitlement, and the consequences for America’s armed forces.
There is only one way to spare the military—and, for that matter, to place this presidential election beyond the ministrations of our politicized Supreme Court, and the machinations of a president too sick to honor his oath to protect and defend our constitution.
An Electoral College victory for Joseph R. Biden so decisive that it brooks no doubt.