The U.S. Military and the Specter of a Rogue Commander in Chief with Absolute Immunity from Prosecution
Less than two months before that other date that will live in infamy – January 6, 2021 – the Chairman of the Joint Chiefs of Staff (JCS), Gen. Mark Milley, had some words of warning for the nation.
Speaking at Fort Belvoir Virginia on Veterans Day, 2020, Milley cautioned against the possibility of a rogue commander in chief.
We are unique among armies, we are unique among militaries. We do not take an oath to a king or queen, or tyrant or dictator, we do not take an oath to an individual. No, we do not take an oath to a country, a tribe or a religion. We take an oath to the Constitution…
These words were spoken by the nation’s top general during a time of turmoil, even danger to the nation, as a distraught, “stewing,” defeated president was refusing to concede that he had lost the presidential election to Joe Biden.
A little less than three years later, after leaving the Trump administration, a less encumbered and more enlightened Milley spoke more directly to the point.
As he was handing over the JCS Chairmanship to General C. Q. Brown on September 29, 2023, with President Biden and Secretary of Defense Lloyd Austin seated behind him, General Milley passionately and forcefully repeated the sacred ethos that the U.S. military do not “take an oath to a king, or a queen, or a tyrant or a dictator.” In an unmistakable reference to Trump, he vehemently added, “And we don’t take an oath to a wannabe dictator. We take an oath to the Constitution, and we take an oath to the idea that is America – and we’re willing to die to protect it.”
Referring to the Constitution, Milley added, “It is that document that all of us in uniform swear to protect and defend against all enemies, foreign and domestic,” emphasizing the words “all” in “all enemies” and the “and” between “foreign and domestic.”
Of course, Trump’s disturbing rhetoric that Milley deserved to be executed for alleged “treasonous acts” must have weighed heavily on the General’s mind.
The four years of Trump’s contempt of the Constitution, his flouting of every law and bedrock American tradition, his disrespect for the military and the possibility of another four years of even more unhinged conduct weigh especially heavy on the military in this election year. For it is “our troops,” from the highest flag-rank officer to the lowest recruit, who may be placed in the untenable position of having to choose between obeying an unlawful order or of following their conscience, the law and the Constitution.
Numerous military officers, both active duty and retired, have spoken out about the untenable predicament that the military was in during Trump’s presidency, especially during the 2020 elections, then on January 6, and finally during the transition to the Biden presidency.
Just a week before the inauguration of President Biden, as threats of possible unrest and violence were everywhere, the eight senior officers who served as the Joint Chiefs found it necessary to, in a memo, remind members of our armed forces that their duty is to support and defend the Constitution and that, on January 20, Joseph R. Biden would be the 46th commander in chief.
Citing the “violent riot in Washington, D.C. on January 6, 2021…a direct assault…on our Constitutional process…” their memo assured the American people that the U.S. military will obey lawful orders from civilian leadership…remain fully committed to protecting and defending the Constitution of the United States against all enemies, foreign and domestic.
It was just “the latest example of an apolitical American military and its top leadership thrust into an awkward, even potentially dangerous, position of possibly having to weigh dubious orders from the commander in chief against their oath to uphold the Constitution,” wrote The New York Times.
Trump’s alarming threats of authoritarianism, extremism, violence and retribution and now his claim to absolute immunity have not only continued but have become increasingly strident and erratic during the past three years.
And so have the warnings from present and former members of the military, including secretaries of Defense, against a man whom Trump’s own former Secretary of Defense, retired U.S. Marine Corps four-star general James Mattis, at one time called “an ambitious leader, unfettered by conscience, or precedent or decency, who would make himself supreme.”
Already in December 2021, three retired U.S. Army generals with a total of five stars on their (combined) shoulders and with a total of nearly one century of active military duty penned an op-ed in The Washington Post warning Americans about the “potential for lethal chaos inside our military, which would put all Americans at severe risk” in the aftermath of the 2024 presidential election.
“In short,” they wrote, “We are chilled to our bones at the thought of a coup succeeding next time.”
In a September 2022 open letter, eight former Secretaries of Defense and five former Chairmen of the Joint Chiefs of Staff wrote, “…the power to declare a policy/order/action illegal or unconstitutional is decisive because the military is obligated (by law and by professional ethics) to refuse to carry out an illegal or unconstitutional policy/order/action.”
They added, “However, regardless of the process, it is the responsibility of senior military and civilian leaders to ensure that any order they receive from the president is legal.”
Even more recently, on April 8, 2024, a distinguished group of 19 decorated, retired four-star admirals and generals, along with former secretaries of the Army, Navy and Air Force who served “under each President from John F. Kennedy to Donald J. Trump,” filed a 38-page Amicus Brief with the U.S. Supreme Court warning the Justices about the dangers of Trump’s claim of absolute presidential immunity, calling aspects of it “profoundly ahistorical.”
In the brief they warn that if Trump’s immunity claim is sustained, it “has the potential to severely undermine the Commander-in-Chief’s legal and moral authority to lead the military forces, as it would signal that they but not he must obey the rule of law.”
As to the duty to disobey an unlawful order, the brief cautions, “[it] would be an unacceptably thin fail-safe against a president who was intent on flouting and who was permitted to flout the law without the possibility of criminal prosecution.”
Expanding on this moral, legal and Constitutional conundrum and emphasizing the trust that must exist between the Commander in Chief and the military the Amici add:
A President free to command the armed forces to carry out unlawful orders without any legal consequence for the Commander- in-Chief would threaten to destroy that trust. Such a President would be able to break faith with the members of the armed forces by placing himself above the very law they are both sworn to uphold. Allowing the Commander-in-Chief to weaponize the powers of the U.S. military to criminal ends with impunity would also confront the President’s civilian appointees and military officers with an impossible choice: whether to obey the orders of the Commander-in-Chief or the laws of the United States.
Echoing the generals’ 2021 concerns about the 2024 elections and subsequent transition of power, the Amici also warn that “[Trump’s] claimed immunity, by implicating the peaceful transition of power in particular, threatens national security.”
In another brief on the same date, another group of national security and military professionals expresses concern that such presidential immunity “allowing a president to issue orders requiring subordinates to commit criminal acts or omissions would wreak havoc on the military chain of command and result in an erosion of confidence in the legality of presidential orders…” One of the most serious risks of presidential immunity they list is the danger “that the President may abuse his Commander-in-Chief authority, thereby placing the integrity of the armed forces at risk.” “Imagine a president determined to use the U.S. military to commit crimes against political opponents,” they warn.
In their December 2021 Washington Post op-ed (discussed earlier), the three generals urged our elected officials and other leaders, our Defense Department and the military to take immediate steps to prevent a 2024 coup from occurring.
They wrote:
[The military] should immediately order a civics review for all members — uniformed and civilian — on the Constitution and electoral integrity…a review of the laws of war and how to identify and deal with illegal orders… reinforce ‘unity of command’…[make every] service member…understand whom to take orders from during a worst-case scenario…
That the generals found it necessary to urge such actions is extraordinary.
At least two of our service academies are taking such advice to heart.
In “Military personnel swear allegiance to the Constitution and serve the American people – not one leader or party,” two active duty Army officers* who teach at West Point discuss a mandatory course for cadets on the Constitution and American politics.
At The Conversation, they write, “We are concerned about the implication that the military somehow owes allegiance to specific individuals. Military officers do take an oath upon commissioning – but not to a person.”
“Our oath is to support and defend the Constitution of the United States. Our course and similar efforts at the other service academies teach future officers to internalize the importance of their oath to the Constitution, especially in the current hyper partisan political climate,” they add.
In “Renewing Democracy through Oath Education at the Air Force Academy,” three other authors** discuss a “cadet-led initiative to improve understanding of the Oath of Office among military students at academies and professional development institutions.”
They refer to the assertion by James Joyner and Butch Bracknell*** at War on the Rocks that “there is a great amount of ambiguity surrounding the lawfulness of following civilian orders of questionable constitutionality…expecting military members to discern whether actions by a president or Congress are constitutional is beyond the scope of even the most educated of officers.”
If the time ever comes when we expect our military to bear the additional burden of divining which orders are legal and constitutional or are just the macabre whim of a reckless and amoral commander-in-chief, it will indeed be a sad day for our democracy.
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* Joseph G. Amoroso, Assistant Professor of American Politics and Lee Robinson, American Politics Program Director, both at the United States Military Academy West Point.
** Dr. Marybeth Ulrich, professor of government at the U.S. Army War College; Dr. Lynne Chandler Garcia, associate professor at the U.S. Air Force Academy; Cadet Sydney Fitch, a senior at the U.S. Air Force Academy.
*** James Joyner is a professor of security studies and the security studies department head at Marine Corps University’s Command and Staff College and Butch Bracknell is a retired Marine officer, international lawyer, and occasional civil rights activist.
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