Archive for Friday, July 28, 2017

Opinion: What if Trump gives illegal order?

July 28, 2017

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If President Trump ordered a senior government official to support the firing of special counsel Robert Mueller, how should that person respond?

Adm. Mike Rogers, head of the National Security Agency, answered my question about that onstage last week at the Aspen Security Forum. He began with the usual caveat that he wouldn’t answer a hypothetical, but then offered a comment that brought spontaneous applause:

“I will not violate the oath I have taken in my 36 years as a commissioned officer.” He said he regularly reminds NSA employees to recall their own oaths and ask themselves: “Why are we here? What are we about? What is it that we are defending? ... I won’t sacrifice that for anyone.”

In Trump’s Washington, it’s a fact of life that officials must now weigh whether they would follow presidential orders that might be improper or illegal. Officials mull (and occasionally, discuss quietly) what to do if a presidential request for loyalty conflicts with their sense of right and wrong.

A possible order to fire Mueller is an imminent concern, but there are other tests of loyalty and conscience that could arise with this impulsive, policy-by-Twitter chief executive.

Take Trump’s proclamation Wednesday that transgender people shouldn’t serve in the military. This apparently caught the Pentagon by surprise and contradicted a wait-and-see statement by Defense Secretary James Mattis. How should he and his generals respond to the president’s edict?

Mattis and his commanders must also ponder how they would react to an impulsive order to conduct military action somewhere. Can they say no to the commander in chief?

Presidential orders cannot ordinarily be ignored or dismissed. Our system gives the commander in chief extraordinary power. Jack Goldsmith, a Harvard law professor and former assistant attorney general, explains in an email: “A subordinate in the executive branch has a presumptive duty to carry out the command of the president. If one doesn’t want to for any reason, one can resign — or refuse the order and face a strong likelihood of being fired.”

For a military officer, the standard is even tougher. Soldiers must obey orders unless they’re unlawful. Under our system of civilian control, if the president issues an order (as on transgender soldiers), the military’s default response is to carry it out. Courts may find the presidential order to have been unconstitutional, but the military cannot make its own policy or law.

How should Congress and Justice Department officials weigh their choices as Trump threatens openly to fire Attorney General Jeff Sessions, presumably to clear the way for firing Mueller? It’s useful to think about the unthinkable — as a way of surfacing, and hopefully preventing, abuse of power.

Let’s start with Justice. Since Sessions recused himself from the Russia investigation, an order to fire Mueller, for now, would go to Deputy Attorney General Rod Rosenstein — who has strongly indicated he would refuse. In June, members of the Senate Appropriations Committee got this commitment: “I am not going to follow any orders unless I believe those are lawful and appropriate orders. Special counsel Mueller may be fired only for good cause, and I am required to put that cause in writing.”

Can Congress obtain similar pledges from other senior officials of the Justice Department who would be in the chain of command? During the Watergate scandal, Attorney General Elliot Richardson and his deputy, William Ruckelshaus, felt bound by the commitments they had given Congress not to fire special prosecutor Archibald Cox. A similar chain of obligation should be forged now, to circumscribe Trump’s ability to sack Mueller.

Given the expectation that Rosenstein (and probably others) would quit rather than fire Mueller, the White House seems to be thinking about installing a new attorney general who wouldn’t have the recusal problem and could be counted on to fire Trump’s nemesis. Members of Congress are said to be gaming this option, thinking of ways to block a recess appointment or to extract a promise from any Sessions successor to leave Mueller alone. That’s another good firewall.

Protecting Mueller by statute may be impossible because of the constitutional separation of powers. If he is fired, though, Congress could enact a new independent counsel law, at least providing the authority needed for a continuing investigation that will get to the truth of what happened. In dealing with this administration, lawmakers and other officials can’t wait until the bomb detonates; they should begin to take precautions now.

— David Ignatius is a columnist for Washington Post Writers Group.

Comments

Ken Lassman 2 months, 3 weeks ago

This is indeed a riveting, sad chapter in our country's history. I would hope that our institutions can withstand the assaults, but hope that the loopholes that Trump and friends have used/are considering will be closed up--including requiring financial disclosure of the presidential candidates, strengthening the conflict of interest/emoluments laws, limiting the ability of the President to override sanctions, etc.

White House staff act like deer in the headlights; cabinet members are more and more keeping their distance; government is functioning more and more without executive oversight simply because there seems to be little interest from Mr. Trump in engaging in those banal details. Perhaps this increasing isolation is the best possible course that can be taken, as there are many, many lives and legacies which depend on those details, and there are many capable departments who can run just fine without unbridled, unpredictable executive "leadership."

Perhaps we are destined to have an Administration whose sole focus is throwing boiling oil over the walls of their self-made fortress, keeping critics at bay while throwing their own over the walls whenever they start feeling nervous about them, replacing them with a shrinking line of new recruits coming in the heavily guarded back door. Not much will be done by this Administration except an occasional ideologically driven grenade here and there, not only because of a lack of a plan, but because the American people themselves are not being unified by this President. He is a horrible role model for our children and young people, and his inability to get beyond the 3 or 4 lies he used in a Bread and Circus type of way that got him into the presidency is becoming increasingly apparent.

I say: try to minimize the damage that might be occurring in the next 3 and one half years and start working on laying out a truly bipartisan post-Trumpian future. The election in 2 years have a chance to strengthen the congressional gridlock, which then gives another 2 years to formulate a way to return to a functioning legislative process that will hopefully replace the end-run type of fiascos that have characterized national politics of late. Party politics have become too strong and too susceptible to special interests; perhaps the Governors can foment a stronger state presence in congress that can become the basis for more bipartisan efforts. It has to start somewhere.

Gary Stussie 2 months, 3 weeks ago

Praying for more gridlock. We saw (and I expect will see more) how the Obama administration subverted the democratic process. We saw how Democrates, when empowered, say "the hell with those other guys" . Give the guy a break. 6 months with every liberal in the country gunning for him! I truely believe the concern is that he will do so much good for this country that he will be a 2 term President.

Thomas Bryce Jr. 2 months, 3 weeks ago

"It is just an Iceberg, Captain. Give it a chance." Famous last words from the bridge of the Titanic. By the way, it is not just "Liberals" that have been gunning for him. A Republican controlled Congress is Bailing on him. His Republican Chief of Staff(Priebus) just Resigned. But, you go ahead and "Stay The Course". Scaramucci is just the latest distraction. As Lindsey Graham(A Republican) said." If Trump fires Sessions there will be Hell to pay. And if he succeeds in firing Mueller that will be the beginning of the end of the Trump Presidency". Give credit where credit is due!

Greg Cooper 2 months, 3 weeks ago

No, Gary, we did not see Obama subvert the Deomcratic process. He used it to its fullest extent. What you may be remembering are the times when the Regressives refused any invitation to help in producing laws that actually made efforts to help all people in the nation, rather than the singularly wealthy. Give the guy a break? Why? Do you actually see anything he has done as a harbinger of good to come? Be honest, Gary, and look at facts rather than standing on cratered ideology.

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