Executive Branch

Fire Lloyd Austin

Matt Gluck, Benjamin Wittes
Friday, January 12, 2024, 1:56 PM
We’re sorry he has been ill and wish him a swift recovery. His conduct is not acceptable in a democratic society in which the Pentagon serves a civilian president.
Secretary of Defense Lloyd J. Austin III briefs the press from the Pentagon Briefing Room, Feb. 19, 2021. (DoD Photo by USAF Staff Sgt. Sanders https://www.flickr.com/photos/secdef/50960365597/; CC BY 2.0 DEED https://creativecommons.org/licenses/by/2.0/)

Published by The Lawfare Institute
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Former President Donald Trump ”truthed,” on Monday that Secretary of Defense Lloyd Austin “should be fired immediately for improper professional conduct and dereliction of duty.” 

Calling “shocking and absolutely unacceptable” Austin’s conduct in not announcing his hospitalization either publicly or to the president, Rep. Elise Stefanik (R-N.Y.) stated, “[t]here must be full accountability beginning with the immediate resignation of Secretary Austin.” 

Sen. J.D. Vance (R-Ohio) said in an interview on Fox News, “[w]e have to remember that Joe Biden ran on restoring basic decency and order to the White House….They promised good government,” continuing, “[Austin] absolutely should resign.” 

Sometimes the worst people have a point. And you can count us with Trump, Stefanik, and Vance on this one. Austin has got to go. If he doesn’t resign, President Biden needs to fire him.

Over the last several days, the Department of Defense has admitted that Secretary Austin failed to inform the White House, Congress, and the public in a timely manner that he has prostate cancer, has had multiple procedures to address it, and has twice passed off certain authorities to his deputy over the last month because of his incapacitation.

We have nothing against Austin and wish him the swiftest of recoveries. And we have no brief for the four-times indicted Trump or the noxious political opportunists, Stefanik or Vance.

That said, Vance is absolutely right about the affront to democracy that Austin’s conduct represents. It would be an affront to the presidency and the chain of command under any circumstances. But President Biden is running for reelection based on the rule of law and respecting American democracy. Speaking last week at Valley Forge, one day before the third anniversary of the Jan. 6 attack on the U.S. Capitol, the president said, “our campaign is about preserving and strengthening American democracy.” Biden sought in his speech “to answer the most important of questions. Is democracy still America’s sacred cause?” 

The secretary of defense having a secret surgery and hospitalization while U.S. forces are in action, keeping the president and the public in the dark about it, and having the Pentagon then mislead the public and release information in dribs and drabs simply cannot be reconciled with that central theme of Biden’s campaign for reelection.

Here are the facts, as we know them, about what Secretary Austin did and didn’t do.

On Dec. 22, according to National Security Council Spokesman John Kirby, Sec. Austin underwent surgery for prostate cancer identified earlier in the month. He had not informed either the White House or the public either of his diagnosis or of the impending surgery. Austin was discharged from the hospital the next day. 

On New Year’s Day, Kirby said, after attending a meeting in the morning about U.S. military activity in the Middle East with the president and other senior officials, Austin began to experience complications from his procedure, including nausea and severe pain in his upper and lower body—according to his doctors. The secretary was then taken by ambulance to Walter Reed Hospital—accompanied by his security detail. On Jan. 2, the Walter Reed doctors said he was moved to the intensive care unit (ICU) “for close monitoring and a higher level of care.” (However, some reporting indicates Austin was moved to the ICU on Jan. 1.) On the same day, Austin transferred “certain authorities”—in the words of Pentagon spokesman Pat Ryder—to Deputy Secretary of Defense Kathleen Hicks, who was then in Puerto Rico on vacation. On the evening of Jan. 5, Austin resumed his full duties from Walter Reed. The secretary left the ICU by Jan. 8; the precise timing remains unclear.

So far, the story is pretty normal. Senior officials periodically have medical issues they must and should address, and subordinate officials are well positioned to fulfill their responsibilities while their bosses are incapacitated. 

What is not normal is for the defense secretary to elevate his desire for secrecy, or perhaps privacy, over his obligation of transparency both to the president and the public.

Apparently aware he would be unconscious when he underwent the planned operation to treat his prostate cancer on Dec. 22, Austin prudently, according to Ryder, “transferred certain operational authorities to Hicks.” But Austin, in what would become a theme over the next few weeks, left at least one important party out of the loop: the White House. And not just for an hour, a few hours, or days, but for two weeks. The White House did not know about this Dec. 22 procedure at least until Jan. 4, and maybe until Pentagon spokesman Pat Ryder revealed it to the public on Jan. 5—in what Ryder called an “elective medical procedure.” It was not until Jan. 7 that Ryder revealed the date on which the procedure had occurred. And, according to Kirby, it was not until two days after that—18 days after the procedure took place—that the commander in chief found out that the surgery was to treat prostate cancer of which Biden was previously unaware that Austin had. 

The president was entitled to know that his secretary of defense had cancer. The president was entitled to know his secretary of defense was having it treated surgically. And the president was most emphatically entitled to know that Austin was being hospitalized on an emergency basis and moved to an intensive care unit for complications from that surgery. 

Indeed, Austin’s conduct grew worse with his medical condition, specifically when he returned to Walter Reed on Jan. 1.  

We are not suggesting the secretary should have picked up the phone as he was being rushed in an ambulance to the hospital, experiencing “severe pain” in much of his body. But his staff certainly should have. And by the next day, Jan. 2, Austin was well enough to inform—or direct the informing of—Ryder and his senior staff that he was in the hospital. And he was able enough to transfer authorities to Hicks, in Puerto Rico at the time, on that same day. But while he managed to transfer the authorities to Hicks, he chose not to tell Hicks why she was being granted this authority, first reported by Politico and later affirmed by Ryder to reporters. And Austin still chose to keep the White House, Congress, and the public in the dark.

Even the following day, Austin remained quiet. All day on Jan. 3, Austin was conscious at Walter Reed, and he did not inform the president across town of his condition, or that if Biden needed to take military action to address an urgent military threat, he was not the one to call.

Finally, in the later afternoon on Jan. 4, Austin’s Chief of Staff Kelly Magsamen notified National Security Adviser Jacob Sullivan of Austin’s hospitalization. When Sullivan heard Austin was in the hospital, he—naturally—asked why. According to National Security Council spokesman John Kirby, when the White House learned of Austin’s hospitalization, “we certainly asked all the questions you would think we would ask to try to ascertain his condition and what…drove him into the…hospital.” Although it is unclear how Magsamen answered Sullivan’s question, what she apparently did not tell him was the whole truth: that Austin had been hospitalized for complications relating to a procedure to treat his prostate cancer. Recall that the White House did not find out Austin had prostate cancer until five days later. Sullivan, with Biden’s Chief of Staff Jeff Zients, then promptly informed the president of Austin’s hospitalization early in the evening on Jan. 4. 

Hicks, who also learned on Jan. 4 that her boss was in the hospital, began to work with Austin’s chief of staff on a statement to the public and one to Congress revealing Austin’s status. It took Hicks and Magasmen about 24 hours to produce the 65-word statement that would come out Friday evening at 5:03 pm. According to Ryder, Congress learned about the whole thing barely before the public did: It was notified approximately 15 minutes before the public. 

Perhaps more concerning still, the military’s service secretaries—who are in the chain of command—did not know Austin was in the hospital until Jan. 5. One anonymous Defense Department official said Austin’s aides informed them that the secretary was “working from home” during the week he was hospitalized.

The secretary had another chance for some semblance of transparency when he spoke on the phone with President Biden on Jan. 6. On the same day that he would issue a statement taking “full responsibility” for “decisions about disclosure,” Austin chose not to tell the president in that conversation that prostate cancer was the reason he was in the hospital, or even that he had prostate cancer. Kirby noted in a Jan. 9 press briefing that nobody at the White House knew that prostate cancer was the “root cause” of Austin’s hospitalization—or that the secretary even had cancer. On Jan. 9, doctors at Walter Reed issued a statement shedding a bit of light on Austin’s medical treatment and condition. In it, they noted that during Austin’s stay in the hospital that began on Jan. 1, the secretary remained conscious throughout. As of Jan. 11, Austin remained at the hospital.

In addition to the public’s lack of awareness of Austin’s hospitalization until the evening of Jan. 5, the trickling pace of other key revelations is worth noting. The public, like the president, did not find out that Austin had undergone the Dec. 22 surgery until the Pentagon’s release of a public statement on Jan. 5; it did not learn the date on which the surgery had occurred until Jan. 7 (from Ryder’s statements to reporters); it did not learn the underlying cause of Austin’s hospitalization until  Jan. 9 (from a statement by doctors at Walter Reed); it did not learn until Jan. 6 that Hicks assumed some of Austin’s duties in early January (a story first broken by Politico on Jan. 6). Ryder then clarified this point, noting on Jan. 7 to reporters that certain authorities had been transferred to Hicks. And it was not revealed to the public until Jan. 8 that Austin had transferred authorities to his deputy when he underwent his Dec. 22 surgery (which Ryder stated in a press briefing). 

Indeed, the public did not learn until Jan. 6—from statements given to Politico by unnamed U.S. officials—that the White House had been in the dark until Jan. 4, or that Congress did not know about the secretary’s situation until just before the public release. Moreover, it appears the public was unaware until Jan. 7—and only then from media reporting—that Acting Sec. Hicks did not know the reason why she was given some of the secretary’s authorities on Jan. 2. The Pentagon did not reveal these details—the lack of awareness on the part of the White House, Congress, and Hicks about Austin’s hospitalization—until Ryder’s Jan. 8 briefing.  

The Pentagon’s primary explanation for its communication failure? In a Jan. 8 briefing, Ryder said that the “delay in these notifications” was partly due to the fact that Austin’s chief of staff was out sick with the flu.

None of this is democratically forgivable, however much one may sympathize with Austin for what appears to have been an agonizing acute illness on top of a cancer. 

Yet the White House is inexplicably circling the wagons. Since the president learned of Austin’s hospitalization and later his condition, the White House has steadily backed the secretary. According to Kirby, the first call Biden had with Austin on Jan. 6 after being informed of Austin’s hospitalization two days prior was “very brief, and it was really focused on making sure that the President passed on his best wishes for a speedy recovery for the Secretary.” As of the afternoon of Jan. 9, the president had not spoken to Austin since that first conversation. 

And the White House’s statements since that call have made clear the president’s unwavering support for Austin. In one press conference alone—ironically the same one in which Kirby revealed that nobody at the White House knew of Austin’s prostate cancer until Jan. 9—White House Press Secretary Karine Jean-Pierre said the White House “has complete confidence in the Secretary.” Kirby added, the president has “[f]ull faith, trust, and confidence in [Austin’s] ability to lead the Defense Department.”

There are a few key points about this chain of events:  

The first is that they took place during two ongoing major wars. Bad things happen in wartime; they happen even in peacetime. On Jan. 4, before the president had been notified of Austin’s condition—or even that he was in the hospital—the U.S. conducted an airstrike on the headquarters of an Iran-backed militia in Baghdad. 

The president needs to know who the secretary of defense is at all times and who is wielding the powers of that office. A situation in which the nation effectively has no secretary of defense, just one who is hospitalized and who had signed away his powers and a vacationing acting secretary who doesn’t appear to have known why she was in charge, is altogether unacceptable. If the secretary of defense wants to keep his medical condition private from the president, that is his right and it is wholly understandable; but it is not consistent with his remaining secretary of defense.

It is the president, after all, and not the secretary of defense, who is the elected official here. It is the president, not the secretary of defense, who is the commander in chief of the military. And it is the president, not the secretary of defense, who has a constitutional duty to take care that the laws are faithfully executed. Fulfilling such presidential functions when the president doesn’t even know who is acting as secretary of defense is mighty hard. And a secretary of defense who allows such a situation to develop should not remain in office.

The second point, which is independent of the first, is that the public is entitled at all times to know who is running the Defense Department. The United States is not the late Soviet-era Kremlin, where tired old men just disappear for extended periods and nobody knows whether that’s because they’ve been erased, they are visiting a dacha somewhere, or they’re gravely ill with complications from prostate cancer surgery. 

In short, in a properly functioning democracy, the defense secretary just doesn’t have surgery behind the back of the president and the public and secretly enter an ICU, even while U.S. forces are operating in the field and even as the president is speaking at Valley Forge about how his opponent threatens the democratic order. And in a properly functioning democracy, if the secretary of defense has the temerity to behave with such gross disregard for the chain of command, the president’s entitlement to run his own administration and the military, and the public’s right to basic information about who is managing the government, the president fires him.

Biden was right at Valley Forge; Trump does threaten democracy. Sec. Austin’s behavior is not a democratic threat of remotely the same order. But it is not democratically healthy either. And Biden should not tolerate it. 

Austin needs to leave office.

Matt Gluck is a research fellow at Lawfare. He holds a BA in government from Dartmouth College.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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