Sarah Grant and Jack Goldsmith on Lawfare survey the array of options available to the Department of Defense if Trump decides to order a disastrous military order. The upshot?
To say that the Secretary of Defense and his subordinates have a legal duty to comply with presidential orders is not to say that they should do so. It just means that the law of the chain of command requires them to, and they have to be prepared to accept the consequences of defiance. For the Secretary of Defense, that means—if he thinks appropriate—resigning in protest, resisting until fired, informing congressional leaders (in or out of public), or quietly coordinating with the Vice President and others for presidential removal under the 25th Amendment. And whatever the Secretary’s choice, it provides no legal protection to the combatant commanders should they also resist. This might seem like a frustratingly limited set of options. But having an elected President as Commander-in-Chief, and strict adherence to the chain of command, are core elements of civilian control of the military that serve other very important values in the normal course of events. The current conundrum highlights again how very deeply our system of government depends on the People electing a President who is generally reasonable, prudent, and responsible.
That last sentence puts a shiver down my spine. Trump supporters may argue that this is a completely uncalled for exercise in paranoia, but based on the general level of knowledge exhibited by those supporters, and their information sources, I would not expect them to understand the situation in context. Given the long experience of many contributors to Lawfare in the area of national security law, and their consensus dismay at the actions of President Trump, I think this is a prudent article by Grant and Goldsmith.
But, in truth, the ultimate responsibility does not devolve upon Secretary Mattis and his direct subordinates, even if they are the ones fired and dishonored if they take the proper action in the face of an insane order. It rests with those who have the responsibility of oversight over the President, and that is the Legislative branch. In that respect, the general GOP preference to vote with the President is not a good omen; this comment from Speaker Ryan with respect to a simple resolution of censure of President Trump over his comments in the Charlottesville tragedy are quite discouraging:
QUESTION: Hi, Speaker Ryan. Given our shared upbringing, I’m sure that you are as shocked as I am at the brazen expressions, public expressions of white supremacy and anti-Semitism that our country has seen since the November election.
And our synagogue in Kenosha has had to have extra security hired and we’ve asked the Kenosha Police Department to help us out so that people can feel comfortable coming to our synagogue to gather.
And so following up on what’s been asked already, Speaker Ryan, as the leader of the congressional Republicans, I’d like to ask you what concrete steps that you will take to hold the president accountable when his words and executive actions either implicitly or explicitly condone, if not champion, racism and xenophobia. For example, will you support the resolution for censure?
(APPLAUSE)
RYAN: First of all, Dena’s mom and dad, Sylvia and Leon, were close friends of my mom and dad’s. Our families have known each other for a long, long time. And we are family friends.
But I just disagree with you. I will not support that. I think that would be — that would be so counterproductive. If we descend this issue into some partisan hack-fest, into some bickering against each other, and demean it down to some political food fight, what good does that do to unify this country?
(APPLAUSE)
We want to unify this country against this kind of hatred and this kind of bigotry.
So I think that would be the absolutely worst thing we should do. You just heard me say what I thought about what he said on Tuesday and what I thought he said on Monday and just a half-hour ago. The point is, all of us have got to strive to do better, and more importantly, I mean, that right there was sort of conflict of one party against another party. I think what we need to do is each of us drop our guard, start listening to each other, and having a good civil dialogue with each other about how we can improve the dialogue in this country and make sure that we can unify against this kind of vile, repugnant bigotry. [CNN transcript]
Speaker Ryan is one of the leaders in not listening to the other side, a leader in doing Trump’s bidding, not to mention a leader in general incompetency. I fear that any action that might negatively impact the GOP leader is off the table for him.
Given that he may perceive the GOP base is fully behind President Trump, and he values his position more than the safety of the country, this is not particularly surprising. But there’s also the fact that Ryan himself is part of the fringe. He spends a lot of time, I think, trying to normalize his ideology (that is, make his ideology seem mainstream and harmless), so he can’t really afford to condemn another member of the fringe, even if they don’t occupy precisely the same swampy spot. He’s already under attack from both Democrats and even more extremist members of the GOP (and just how that latter can be happening is a matter of conjecture), so he’s walking a tightrope.
He won’t do a thing if he can find a way not to.
