Published by The Lawfare Institute
in Cooperation With
One of the great strengths of the U.S. military is its planning, encompassing contingencies big and small. With sadness, I urge my former colleagues in the military services and at the Department of Defense level to plan now for the possibility of actions by the president to disrupt the forthcoming election or even to vitiate the election results. It is distressing that we have come to this point, where strategic planners must prepare for serious threats to our democracy from the president of the United States, and where the military must be prepared—better prepared than recent events have shown it to be at present—to avoid becoming an instrument of the demise of the great American experiment in democracy and the long and uneven march to a just society.
After the initial trickle of military voices decrying the president’s threat to invoke the Insurrection Act to send the military into our cities becoming a powerful stream, it seems likely that the president and his enablers have abandoned—at least for now—thoughts of invoking the Insurrection Act.
But the president and his enablers have found another way of usurping local and state control over law enforcement. They’ve sent first to Portland and now to Chicago, Albuquerque and other “Democrat-run cities” personnel from the Department of Homeland Security (DHS), ostensibly to protect federal facilities. The protection of federal facilities is a legitimate mission of DHS, but the DHS personnel have been deployed away from federal facilities, and have disrupted, detained, and intimidated protesters, whether they were approaching a federal facility or not. The president has even intimated that the federal agents have been directed to protect monuments in which the federal government has no legitimate interest. The DHS personnel are federal law enforcement personnel, unlike members of the military. But they are dressed in camouflage uniforms, and their presence in the streets of Portland and elsewhere seems calculated to suggest a military operation. The presence of federal officers in Portland has done nothing to bring peace to the streets and seems intended to perpetuate and deepen disruptions.
This usurpation of local policing powers comes as the president’s abysmal performance of genuine federal responsibilities has led to cratering polling results and, most ominously, the president’s incessant drumbeat of attacks on the integrity of the forthcoming election. The president has refused to say that he would accept the results of that election, if he did not win, and he has even raised the prospect of postponing the election. Before the 2016 election, Mr. Trump also made statements refusing to commit to accepting the election results—as reckless and irresponsible as those statements were, he wielded no power at the time. Today, he is the president of the United States, wielding enormous power. This makes his statement a genuine threat to the rule of law and to the nation’s life as a democracy. The deployment of DHS officers has the flavor of a dress rehearsal for actions to disrupt and distort the upcoming election.
The military, sadly, must plan how to respond if the president attempts to wield the power of the presidency to thwart the electoral process, whether through the Insurrection Act or through other means.
Each military member, and every federal official, swears to support and defend the Constitution of the United States. Under the Constitution, all “executive and judicial officers” of the United States and of the states likewise must take an oath or affirmation to support the Constitution. The president’s possible abuse of office to prevent his losing the election (both before and after the date of the election itself) would put such oaths to the test in ways that are completely unprecedented.
How can today’s military members stay true to their oaths, and support and defend the Constitution?
First, we must look to our senior-most political leadership, especially Secretary of Defense Mark Esper. He has a critically important role, and he needs to be aware that the judgment of history will be focused on him. He must make it clear that the department will not carry out illegal orders, no matter what the president says. He has done this before, when he stated at a Pentagon briefing that the military would follow the rules of armed conflict and not attack cultural sites with no military value, despite the President’s threat to do so in Iran a few days previous. Making it clear that the military is a creature of law is a vital foundation for the support and defense of our Constitution.
Likewise, it is critical for senior military leaders—like the chairman of the joint chiefs, the chiefs of staff of the military branches and the combatant commanders—to reiterate that their loyalty is to the Constitution and to the nation, and not to any particular individual.
What is an illegal order will sometimes be clear—for example, if Trump attempts to prevent the electors selected in the various states from meeting and voting, or if he attempts to prevent the Congress from receiving the votes of the electors, military members would clearly be obligated to disobey any order to effectuate his purpose. And if Trump refused to leave the White House, as soon as his term is over the military would be obligated to disregard any order purportedly issued by Trump. An order to delay the elections, which the president has no authority to issue, would likewise have to be ignored.
But as the controversy over the president’s consideration of invoking the Insurrection Act showed, it is not always clear what an illegal order is. In the case of the Insurrection Act, the ability of the president to send in troops in the absence of a request from a state’s governor depends on questions of degree and judgment. More precisely, it hinges on whether the “domestic violence” occurring in cities across the country
so hinders the execution of the laws of that State … that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection …
The president might assert, without factual basis, that lawlessness and chaos meet this standard. But even if there were unusual violence, if that unlawful behavior is not directed at a particular “part or class” of people to “deprive [them] of a right, privilege, immunity, or protection named in the Constitution and secured by law,” the statute should not be read to provide authority. In the current situation, there are certainly law enforcement challenges, but there is not the kind of rampant lawlessness and chaos for which this provision of the Insurrection Act is intended. And there is no indication that a “part or class” of people is being deprived of their constitutional rights in any sort of general or systematic manner. Drawing the line between an organized effort to intimidate and subjugate a “part or class” of people to deny them their constitutional rights (think about Mississippi Burning in the mid-1960s) and random violence requires the exercise of some judgment. But when a blatantly unconstitutional motive—targeting the political opposition through force and violence—is proclaimed by the President, the task of determining the unlawfulness of such behavior becomes easier.
To be sure, judgment under the Insurrection Act, in the first instance, is to be exercised by the president. That it is a matter of judgment for the president is not the same thing as saying anything goes. There is a legal standard, and if that legal standard is not met there is no power. Allowing the president to be the final arbiter of whether the legal standard is met would eviscerate the constraints of law on the power of the president. Total deference to the president would not preserve the separation of powers, it would destroy it, rendering the Congress’s lawmaking role a mere chimera. The closer we get to the election—the ultimate check on the president’s authority, with free and fair elections being the very heart of what it means to be a democracy—the more searing should be the review of the president’s exercise of judgment. This is true for the courts, but it is also true for the Department of Defense and our military—and indeed for all officers, state, federal and local, who have sworn to uphold the Constitution.
Should the president issue an order for troops to deploy to the streets of Milwaukee in the weeks before the election, for example, personnel throughout the federal government should evaluate that order in the context of the president’s persistent attacks on the integrity of the electoral process, and his recent suggestion that the election should be postponed. Examined in that context, there is an obvious danger that any finding by the president that the predicate for deployment under the Insurrection Act has been met would be a disingenuous pretext for an effort to stifle voter turnout in a “Democrat city” so as to gain the electoral votes of the state.
The entire chain of command, from the secretary of defense on down, must be prepared to exercise judgment and refuse to carry out a pretextual, and thus illegal, order. Similar concerns may arise, for other officials at the state and federal level, with respect to the president’s possible use of other authority for the unlawful purpose to disrupt or delay the election. And our courts, including the Supreme Court, must take the uncomfortable step of being willing to exercise judgment to uphold our constitutional commitment to choosing our presidents through elections, not force.
The nation’s life as a democracy hangs in the balance.