UPDATE (July 1, 2024, 11:15 a.m. ET): On Monday morning, the Supreme Court ruled that on Trump’s presidential immunity claim, finding some of the former president’s alleged efforts to overturn the election are immune from criminal prosecution, and likely delayed a trial date in the federal election interference case.
Imagine a large group of activists assembled outside the White House, peacefully protesting a recent decision by the president. They are waving signs denouncing the new policy, holding banners demanding change and chanting slogans about that president. As their numbers begin to swell, as their voices grow louder, the president issues an order to military commanders: Take them out.
Our military leadership would then be faced with an impossible choice. They’d either have to follow the clearly unlawful order of their commander in chief, and commit crimes for which they could be prosecuted, or openly defy that order.
These are the big — possibly democracy-ending — stakes before the Supreme Court this week as it considers former President Donald Trump’s argument that he is absolutely immune from criminal prosecution for illegal acts.
This is not a far removed hypothetical, but a very real choice service members could face if the president of the United States is immune from criminal prosecution. It could become the reality for our men and women in uniform if the commander in chief is found not to be restrained by the law. These are the incredibly big, country-defining — possibly democracy-ending — stakes before the Supreme Court this week as it considers former President Donald Trump’s argument that he is absolutely immune from criminal prosecution for any "official acts."
The two bedrocks of the United States military are the principle of civilian control and the rule of law. Civilian control is enshrined in our Constitution and has guided us through centuries of conflict. The military does not operate outside our democratic system, but instead answers to our elected representatives and appointed civilian leaders. At the same time, the military and the civilians who control it have a duty to operate within the rule of law.
These two principles function together because of trust. The military trusts that the orders they receive are lawful, and the president and the American people trust that the military will follow and obey the chain of command. Coupled with this is the military’s affirmative duty to disobey unlawful orders. If the president is above the law and can issue illegal orders at will and without accountability, then members of our military can be thrust into a nightmare scenario where they’re forced to choose between obeying an unlawful order or following their duty to disobey.
Taking this one step further, how do service members throughout the chain of command respond if there is an order coming from the commander in chief demanding that they do something illegal and another coming from the top of the military leadership telling them to disobey? There would be chaos as each unit commander and each individual service member decided which to follow. This would inevitably destroy the United States military as a fighting force and as a defender of democracy.
This threat to our military and national security is why I joined the amicus brief in Trump v. United States with 18 former service secretaries and retired four-star admirals and generals. I have served my country both in uniform and as a civilian leader, and I believe in the critical role the military plays in upholding our democracy. We cannot stay silent about the risks to our nation and our national security if the president is placed above the law. Such is a belief held by dictators, not democratically elected representatives. Notably, no other president or former president in our history has argued, as Trump has, that he must break the law to be effective.
The signers of this amicus brief served in every presidential administration from President John F. Kennedy to Trump. All those in uniform served for decades and attained four stars, the highest military rank. Among them are former chiefs of staff for the Army and Air Force and a former commandant of the Marines, a combatant commander, fleet commanders, director of the Central Intelligence Agency and the National Security Agency, and myriad other posts at the very top of our military.
Signers include former service secretaries from all the branches — Navy, Army and Air Force. Every signer has devoted much of their life to serving and defending our country and understands the profound risk to our military if a president is not held to the rule of law.
One of the great strengths of our military, and one of the reasons it is held in such high esteem by Americans, is that it is not political.
One of the great strengths of our military, and one of the reasons it is held in such high esteem by Americans, is that it is not political. Our military and civilian leaders take an oath to protect and defend the Constitution and not to any person, regardless of the office that person holds. Having a military loyal to a person or party is the antithesis of a democracy and the definition of a dictatorship.
The questions in this case are monumental yet clear: Will we continue to hold to the belief that no person is above the law? Will we continue to have the greatest military force of all time dedicated to preserving the very idea of this country as first laid out by the founders? Will we continue to be a beacon of democracy and hope for the world? Will we preserve the nearly 2 1/2-century-old democracy that was bought and defended by blood, brought through fiery trials and bequeathed to us?
As President Abraham Lincoln articulated in his second inaugural address, “fondly do we hope, fervently do we pray” that all the answers are yes.