In November 2018, Donald Trump was considering general Mark Milley for the position of chair of the joint chiefs of staff, the highest military position, and an article in the New Yorker by Susan B. Glasser and Peter Baker (based on their book The Divider: Trump in the White House, 2017-2021) describes the conversation Trump had with Milley in which he expressed concern that Milley was ‘weak’ on transgender issues because Milley had spoken out against the banning of transgender troops. Milley supposedly replied, “No, I am not weak on transgender. I just don’t care who sleeps with who.” Milley also reportedly told him that if he was selected, “I’ll give you an honest answer on everything I can. And you’re going to make the decisions, and as long as they’re legal I’ll support it.”.
Milley and many others already had concerns about Trump’s reckless decision making and hence his qualifying his support for them by conditioning it as long as they’re legal. It is not clear that this caveat registered at all with Trump who clearly seemed to think that anything he said and did was legal.
But this raises an important and unresolved question about how one judges the legality of any order or action by the US president. Since the president is the commander-in-chief of the armed forces, he has the right to issue orders to the military and expect them to be carried out. So in a sense, other than ask someone to commit an actual crime, any order issued by the president has to be considered legal, at least in a technical sense. So what gives Milley, or any other member of the military, the right to question the legality of such an order? What Milley seemed to be suggesting is not legality per se but whether he was obliged to obey any order however reckless and dangerous it might seem. In short, are there any safeguards at all to prevent, or at least avoid, a catastrophe caused by an order from a reckless president?
In a post last year, I looked at the situation concerning the most catastrophic scenario, where a president issues an order to fire nuclear weapons. The actual implementation is done by two military officers at each location of a missile site who, after decoding the order, have to simultaneously take an action of turning a key in order to fire it. The president does not of course call each pair personally but the order comes down to them through the chain of command in the Pentagon. This goes from the president to the defense secretary, then to chair of the joint chiefs of staff and then down the line. In my post, I discussed how Harold Hering, one of the officers at the very bottom of the chain who, along with his paired officer, had to actually carry out the order, wondered how he could know for sure if the command he received was legal and not some rogue order issued by someone in that chain of command (as in the film Dr. Strangelove) or caused by an accident or a technical glitch (as in the film Fail Safe). And even if it was from the president, how could he know that the order had been carefully considered and had not been issued when the president was being coerced or drunk or otherwise irrational? The answer appeared to be that there are in fact no formal checks on the presidential power to issue such orders. Hering, the missile launch officer who persistently raised that question, never got a clear answer and was told by his superiors not to pursue this line of questioning and was eventually forced out of his position.
Hering never got the reassurances he sought about any checks and balances on the president. Instead what happened was that his mere raising of the issue got him in trouble and eventually ruined his career. Hering was put on trial for asking his question and the judge urged his to forget it and just do his job. But he persisted up the chain of command, also writing to members of Congress and even the president. He was seen as a pest but instead of reassigning him to some other branch of the military where his ‘crisis of conscience’ would be allayed, they punished him.
“My promotion to lieutenant colonel was withheld. I was removed from flight status, so I no longer would get flight pay. I was then permanently disqualified from the human reliability program, and along with that my top secret security clearance was taken away from me. And once you have a security clearance removed and you’re permanently disqualified, there’s no hope for your career. …
I pursued every avenue available to me to have my military record corrected, and to have the findings reversed and to remain in the Air Force. Only after I exhausted all of my appeals was I ordered to be retired.”
He became a truck driver.
The president is, of course, bound by the US constitution but that only deals with process and does not address the issue of how to respond to an order that you think is unjustifiable or dangerous. Adjudicating the constitutionality of an order is a very slow moving process that would not help when facing an immediate order, especially one given to the military.
A further problem is that over time, presidents have taken an evermore expansive view of what they are allowed to do and claimed sweeping powers, aided by a pusillanimous Congress that does not push back against such efforts. In 1974, ex-president Richard Nixon, who had resigned over the Watergate scandal, said in an interview with David Frost that if a president ordered people to commit an action that was illegal, such as a burglary, because he felt that it was in the national interest, then the people who carried out the order should not be liable to criminal prosecution. In other words, he was claiming that the people who committed such a crime had de facto immunity because the president had told them to do it. They would be invoking what has come to be known as the Nuremberg defense, that they were just following orders.
Dick Cheney carried this even further during the period when he was vice-president to George W. Bush from 2001 to 2009. He proposed a theory of the “unitary executive” that gave broad powers to the president.
The unitary theory includes two core tenets. The first is that, as then-federal judge and future Supreme Court Justice Samuel A. Alito Jr. said in 2000, “The president has not just some executive powers, but the executive power — the whole thing.” To those under the spell of the unitary theory, this means that the president’s authority over the executive branch is both complete and pretty much unlimited.
The second key feature is that the other branches of government may not intrude on the president’s control of the executive branch. That is, Congress may not legislate, and the courts may not adjudicate matters that the president believes infringe on full and complete control of the executive. If they do, presidents may simply disregard those laws or decisions.
Most constitutional historians consider this interpretation of the Constitution far from the “original intent” of the Founders. After all, it rejects a fundamental tenet of American governance: checks and balances. As the political scientist Richard Neustadt noted long ago, our system is best understood as one of “separated institutions sharing powers.” Yes, the branches are distinct, but the powers are really blended, and it is that blending that allows checks and balances to function.
Dick Cheney also postulated an even more preposterous theory, that the vice-president’s office was not part of the Executive Branch but was a fourth branch of government that was not subject to congressional oversight. This argument was invented to avoid congressional scrutiny over all the shady actions that he and his officials were involved in, such as cooking up fake intelligence to justify the Iraq invasion. It is not clear if the woefully ignorant Trump knows about the unitary executive theory but he clearly behaved as if he had the power to ignore laws and this raised alarm bells as to what those below him should or could do if he made a reckless decision.
If the president shows signs of being a dangerous actor and unfit to hold office, then there is an alternative to the cumbersome impeachment process to remove him from office and that is provided for in Section 4 the 25th Amendment to the constitution.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
It was passed in 1965 following the assassination of President Kennedy and was meant to deal primarily with the physical incapacity of the president to carry out their duties but it can clearly be used if the president is deemed, for whatever reason, to be unfit to hold the office.
Some members of the cabinet apparently considered invoking this in the wake of the events of January 6th when it appeared that Trump was out of control in his desperation to remain in office. But while this was informally discussed, it never went anywhere. All that happened was that a couple of the cabinet members resigned.
According to the article by Glasser and Baker linked above, there were discussions among people who were close to Trump (which I will discuss in a future post), including some in his cabinet and the military, who felt that Trump was unfit to serve but were advised against resigning from their posts because it had been noted that Trump would simply replace them with people who were perfectly willing, even eager, to carry out his actions. They felt that a resignation, even on principle, would be just a one-day story but if they were fired, that would bring more publicity to the bad situation.
There is some precedent that individual resignations do not stop rash presidential actions. Recall what has come to be known as the Saturday Night Massacre when on October 23, 1973, president Nixon wanted to fire special prosecutor Archibald Cox because of his investigations into Watergate. The order had to be issued by the attorney general but Elliot Richardson refused to fire Cox and resigned. The deputy AG William Ruckelshaus also refused to fire Cox and resigned. The next in line was Solicitor General Robert Bork who did fire Cox. Although this created an uproar, the deed was done and Cox was fired. It is not clear if Nixon would have taken that step if the three of them, and perhaps other top officials in the justice department, had told him in advance that they would all resign together if he gave the order to fire Cox. As it was, once Richardson had resigned, Nixon had to go through with the subsequent actions.
To try and prevent Trump from taking such actions, some decided to form a pact to tell Trump that the top people would resign en masse if Trump replaced career people with lackeys. This is what the top people did at the justice department when Trump threatened to appoint Jeffrey Clark as attorney general over Jeffrey Rosen, because Clark was willing to challenge the election results. The other top official in the justice department considered Clark to be unqualified for the position and also one who willing to do anything Trump told him to, whatever its legality. That threat of mass resignations seemed to have prevented Trump from taking that action. Milley also got the other chiefs of the military to agree that if Trump were to order Milley to take a dangerous action (such as bombing Iran) merely in order to create a crisis to enable him to stay in power, that they would all resign together.
So in the last analysis, it may be that that kind of threat of mass resignations is the only check that we have on a president to prevent them from issuing an order that, while legal in the technical sense that he is entitled to make it, is seen as so reckless and dangerous that it should not be carried out.
It seems like a weak reed to depend upon against a president who goes rogue but it might be the only hope of avoiding a catastrophe.