A group of 19 retired four-star generals and admirals and former secretaries of the Army, Navy and Air Force filed a brief with the Supreme Court on Monday, saying former President would have called for. If the president were placed above the law, members of the military and their civilian leadership would be forced to choose which duty to obey.
“Some political appointees might prioritize their loyalty to the President above their oaths and transmit the orders to violate the law, thus passing on to senior military leaders the dilemma of whether to obey the President or the law,” Monday’s brief states. “Alternatively, should the President’s civilian appointees and senior military leaders resign in protest or be summarily fired for refusing to obey the President’s unlawful orders, the Department of Defense would be without the civilian and military leadership that is indispensable to safeguarding our national security.”
Indeed, a partial version of the latter scenario unfolded in 2020 after Trump fired Defense Secretary Mark Esper for publicly stating that the military would play no role in Trump’s efforts to overturn his election loss. Multiple top-ranking policy officials resigned in protest over Esper’s firing, while top military brass, including Joint Chiefs of Staff chairman Mark Milley, discussed resigning if Trump should order them to deploy the military to execute a coup to allow him to stay in power.
The brief from the former military officials takes some time to respond to another brief filed with the Supreme Court by a separate group of three former military officials ― former Trump administration Secretary of Veterans Affairs Robert Wilkie, retired Lt. Gen. Keith Kellogg and retired Lt. Gen. Jerry Boykin ― who suggested that the appeals court ruling rejecting Trump’s immunity claim “should be vacated or reversed” if it relied on the SEAL Team Six scenario, because of the military’s duty to disobey unlawful orders.
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Those three former officials “do not have an adequate answer to what happens when the President exceeds the bounds of his authority and issues unlawful orders he intends to be followed,” the brief by the 19 former military officials states.
Instead, the three former officials only “offer… the unfounded prediction that military officers and officials would defy presidential orders to commit crimes” ― but the Constitution does not provide “that predicted defiance” as a “backstop against criminal behavior by a President,” Monday’s brief states.
“It is no response that the President lacks lawful authority to undertake criminal acts, such as ordering the assassination of a political rival,” the brief says. “That was never in doubt. The issue in this case is what happens when the President exceeds the bounds of his lawful authority ― and the Court should ensure that our legal system continues to disincentivize him from doing so in the first place.”
