In her dissent from the Supreme Court’s ruling on Monday that the president enjoys immunity for “official duties,” Justice Sonia Sotomayor noted that the 6-3 decision allows for a hypothetical scenario in which a U.S. president could avoid prosecution even if he ordered SEAL Team Six to assassinate a political opponent or plot a military coup. Justice Sotomayor is not wrong to feel that she “fears for and opposes our democracy,” concluding. It is doubtful, at best, whether the guardrails of a military officer’s oath to support and defend the Constitution can preserve our democracy against the relentless attacks that would surely befall it in a second Trump administration.
The relationship between civilian and military leadership is the bedrock of our democracy and is based on an implicit “contract” that requires mutual respect, trust, and consultation. The military is allowed the autonomy to make decisions within its professional authority and expects to be consulted on issues of national security.
The military’s job responsibility is to provide unreserved advice to civilian leaders and accept that the final decisions will be made by the people chosen by the American people. In return, the military expects to stay out of politics and not be used as a partisan tool. We are one of the few countries where the military owes its allegiance to a system of government, not to a dictator, king, queen or president.
But during Trump’s presidency, he called for the military’s support even as he sometimes disparaged its authority. At times, he appeared to view the military as merely a political force to be used for partisan gain, frequently referring to senior officers as “my generals.”
Because Article II, Section 2 of the U.S. Constitution says, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of every State which shall have been raised in the service of the United States,” some Americans worry that military personnel will automatically and unquestioningly follow the president’s orders. While not necessarily so, Monday’s immunity ruling could encourage the president to seek absolute obedience from our military. And that would be dangerous.
The clause, known as the Commander in Chief Clause, generated significant debate at the Constitutional Convention. The Founding Fathers were determined that military and political leaders would work together to ensure that no leader could unilaterally or illegally order the use of military force. Yet they never precisely defined the scope of that power in the Constitution. Thus, the Supreme Court’s immunity decision not only highlights the ambiguity of the clause, but also the potential dilemmas faced by military personnel 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 United States Naval Academy, and dean at the United States Army War College, I frequently observed cadets, midshipmen, and active-duty officers discussing the legal and moral obligations of their oaths of office. They were taught that if they followed clearly illegal orders, they would be morally and legally responsible for their actions. It didn’t matter if Lt. William L. Calley ordered his men to shoot civilians in Vietnam, or, in the hypothetical story of SEAL Team Six, if a president ordered the assassination of a political opponent.
(As a side note, I know and have known quite a few SEALs. They are some of the most professional officers in the military. They would find this scenario insulting.)
Sadly, the Supreme Court’s decision may mean that, at least in the event of a second Trump administration, military personnel may be faced with the dilemma of openly rebelling against their commander in chief and subverting both their sense of duty and their personal morality.
The military leadership’s collective discomfort was on display multiple times during Trump’s presidency. He belittled senior military officers and hijacked Independence Day, ordering service members to participate in a celebration that was as much about themselves as it was about America. A military officer on the National Security Council cited his oath of office as a reason for resigning after testifying at Trump’s first impeachment trial. Trump interfered with the military justice system by pardoning three service members convicted of war crimes and suggested to his chief of staff that German generals should follow his orders, as German generals did to Hitler.
Ultimately, his actions resulted in the Chairman of the Joint Chiefs of Staff issuing a memorandum to all military commanders reaffirming the importance of the oath taken by every member of the military. Gen. Mark Milley wrote in the margin, “We have all dedicated our lives to the idea of America. We remain faithful to that idea and to the American people.”
Some military personnel, and veterans serving in high-ranking government positions, have practiced “respectful disobedience” to appear to support the president while tempering his worst outrages.
Disturbingly, Trump has made it clear that he may abuse civil-military relations in a second term. He has said he would use the military to carry out mass deportations of illegal immigrants, in violation of the “Posse Comitatus” law, which prohibits the military from operating on U.S. soil. He has also said he would make broad use of the Insurrection Act and send federal troops into American cities if necessary. The former president even wrote on social media that he would order a televised military tribunal for former Representative Liz Cheney, who served as co-chair of the U.S. House of Representatives’ January 6 Committee.
Such actions could lead to mass resignations among military leaders, but Trump could also try to avoid opposition to questionable orders by placing loyalists like retired Gen. Michael Flynn in key positions, or by appointing only military officials who pass some sort of political loyalty test.
A second Trump term could mark “the end of democracy” and “the birth of a new type of authoritarian presidency,” says presidential historian Douglas Brinkley. This is no exaggeration. Trump has become increasingly willing to force his officials to choose between these potentially conflicting loyalties, and he would likely do so even more forcefully if he were commander in chief again.
This article originally appeared on MSNBC.com.
