In her dissent from Monday’s Supreme Court ruling that a president enjoys immunity for “official acts,” Justice Sonia Sotomayor noted that the 6-3 ruling makes possible the hypothetical scenario of a U.S. president evading prosecution after ordering SEAL Team Six to assassinate a political opponent or even organizing a military coup. Sotomayor, who concluded her opinion by writing, “With fear for our democracy, I dissent,” isn’t wrong to feel that way. It’s questionable at best whether the guardrails of our military officers’ oaths to support and defend the Constitution would be able to sustain our democracy in the face of a relentless assault sure to come in a second Trump administration.
It’s questionable whether the guardrails of our military officers’ oaths to support and defend the Constitution would be able to sustain our democracy in a second Trump administration.
The relationship between our civilian and military leaders is foundational for our democracy and rests on an implicit “contract” requiring mutual respect, trust and consultation. The military is allowed autonomy over decisions within its professional jurisdiction and expects to be consulted on matters of national security.
The military’s professional responsibility is to provide unbridled advice to civilian leadership and accept that final decisions rest with those elected by the American people. In return, the military expects to remain apolitical and not be used as a partisan tool. Ours is one of the few nations whose military swears allegiance to a system of government and not a dictator, king, queen or president.
However, during Trump’s term as president, he sought the support of the military even as he was sometimes contemptuous of its prerogatives. At times, he seemed to view the military as just another political force to be used for partisan advantage, and he frequently referred to senior officers as “my generals.”
Because Article II, Section 2, of the Constitution says that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States,” some Americans fear that military officers will follow any order from a president reflexively and without question. That’s not necessarily true, but Monday’s immunity ruling may encourage a president to pursue absolute obedience from our nation’s military. And that’s dangerous.
What’s known as the commander in chief clause caused significant debate during the Constitutional Convention, and our Founding Fathers were determined to ensure military and political leaders worked together and that no one leader would be able to order the use of military might unilaterally or illegally. Even so, they didn’t precisely define the extent of those powers in the Constitution. Thus, the Supreme Court’s immunity ruling exposes not only the clause’s ambiguity but also a potential dilemma facing military officers who swear to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”
As a faculty member at West Point and the U.S. Naval Academy and a dean of the U.S. Army War College, I frequently witnessed cadets, midshipmen and serving officers discussing the legal and moral obligations of their oath. They’re taught that following a clearly illegal order would make them morally and legally responsible for their actions. It wouldn’t matter if it’s Lt. William L. Calley ordering his men to shoot Vietnamese civilians or, to the SEAL Team Six hypothetical, a president ordering a political opponent’s assassination.
(As an aside, let me say that I know and have known a significant number of SEALs. They are some of the most professional officers in the military. They find this scenario insulting.)
Tragically, the Supreme Court decision may have made it likely that military personnel will wrestle with the dilemma of either openly defying the commander in chief or subverting their sense of both duty and personal morality — at least if there’s a second Trump administration.
The military leadership’s collective discomfort was demonstrated multiple times when Trump was president. He belittled senior military officers and took over Independence Day, ordering service members to participate in a celebration that was as much about himself as it was about America. A military officer serving on the National Security Council cited his oath as an officer to explain his resignation following his testimony during the first Trump impeachment. Trump interfered with the military justice system by pardoning three service members convicted of war crimes and suggested to his chief of staff that generals should follow his orders like German generals did for Hitler.
I know and have known a significant number of SEALs. They find this scenario insulting.
Ultimately, his actions resulted in the chairman of the Joint Chiefs of Staff issuing a memorandum to all top military commanders reaffirming the critical importance of the oath taken by every member of the armed forces. Gen. Mark Milley wrote in the margin, “We all committed our lives to the idea that is America. We will stay true to that and the American people.”
Some in the military — as well as retired officers serving in senior administration positions — exercised “respectful disobedience” in order to appear supportive of the president while keeping his worst excesses at bay.
Disturbingly, Trump has revealed how he might abuse civil-military relations during a second term. He has said he’d use the military to carry out mass deportations of people here illegally, contrary to “Posse Comitatus” law, which forbids the military from conducting operations on American territory. He’s also said he’d make extensive use of the Insurrection Act and order federal troops to American cities as he sees fit. The former president has even written on social media that he would order a televised military tribunal for former U.S. Rep. Liz Cheney, who co-chaired the U.S. House Jan. 6 committee.
Such actions could result in mass resignations by senior military officers. But Trump could also seek to avoid opposition to any questionable orders by placing loyalists such as retired Gen. Michael Flynn in key positions or by appointing only senior military officers who have passed some form of political loyalty test.
A second Trump term could bring “the end of our democracy,” says presidential historian Douglas Brinkley, “and the birth of a new kind of authoritarian presidential order.” That’s not hyperbole. Trump showed an increasing willingness to force senior military officers to choose between these potentially conflicting loyalties, and he would likely do so with even greater intensity if he becomes commander in chief again.