President Donald Trump has yet again suggested that his political opponents deserve to be executed. And yet again, he’s basing this argument on a rather novel legal theory and a dubious interpretation of the facts.
A half-dozen congressional Democrats cut a video this week urging members of the military not to obey unlawful orders that Trump might issue. Trump then responded by issuing a series of social media posts suggesting these members had committed sedition and possibly even deserved to die.
Trump went from saying they should be arrested, to re-posting someone who said George Washington would “HANG THEM,” to saying “SEDITIOUS BEHAVIOR, punishable by DEATH!”
White House press secretary Karoline Leavitt clarified Thursday that Trump does not, in fact, want members of Congress put to death.
But she otherwise stood by the idea that these members were acting dangerously and undermining the commander in chief. She said the members were urging members of the military to “defy the chain of command.”
“They are literally saying to 1.3 million active-duty servicemembers to defy the chain of command – not to follow lawful orders,” Leavitt said.
But that is not what they were literally saying.
In fact, the members were not urging anyone to disobey “lawful orders.” They explicitly referred in the video only to unlawful orders – and repeatedly so.
The other problem is that “defying the chain of command” isn’t just something military servicemembers are allowed to do in such cases; it’s something they’re often required to do.
The section of Article 92 of the Uniform Code of Military Justice dealing with failing to obey orders states that members can only be sanctioned for disobeying lawful orders. And servicemembers are generally obligated to not follow orders that are “manifestly unlawful.”
If there’s a potentially more legitimate objection to Democrats’ video, it’s that they’re erecting a straw man – basically that they’re inventing out of whole cloth the prospect of Trump issuing illegal orders, in order to make military servicemembers hesitant to abide his orders.
This is the argument that some of Trump’s allies have gone for on Fox News.
“If you can’t name the unlawful orders that these guys are bringing up in their video, you know, that just shows me that you don’t have the courage to even call out what you’re talking about,” Republican Rep. Eli Crane of Arizona said.
Fox News anchor Martha MacCallum in a separate segment pressed Democratic Rep. Jason Crow, one of the lawmakers in the video, repeatedly on the same subject.
“What specific order from the commander in chief that we are asking our military to carry out are you objecting to?” MacCallum said. “This is very, very vague.”
But it’s not as if this is a prospect Democrats have invented out of whole cloth. Trump has given them plenty to work with, including some things Crow mentioned in the interview.
Trump has repeatedly proposed doing things – with the military and otherwise – that appear to be illegal. People who served with him have said he suggested illegal action. And Trump is certainly testing the bounds of the law with his use of the military even as we speak.
The big example right now is Trump’s strikes on alleged drug vessels in the Caribbean Sea and the Pacific Ocean – strikes that have killed more than 80 people without a legal process.
CNN has reported that both the United Nations and top allies like the United Kingdom regard the strikes as illegal extrajudicial killings. Republican Sen. Rand Paul of Kentucky has echoed those claims, while other GOP senators have questioned their legality as well. The administration has also declined to publicly detail its legal justification, even as the Justice Department has produced a classified legal opinion authorizing the strikes. It has released survivors of the strikes who, if they had been kept in US custody, could have forced it to defend itself in court. Also, a top commander who CNN has reported raised questions about the legality of the strikes is now retiring early.
There is a very real question about whether the servicemembers involved in those strikes are carrying out illegal orders. And the administration has proactively avoided a more robust legal process that could settle that question.
But that’s hardly all. Here are some other key data points:
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During the 2016 campaign, Trump floated having the military torture people and kill terrorists’ families. When it was posited that troops would not follow such illegal orders, Trump responded: “If I say do it, they’re gonna do it.” (He later backed off, saying he would not order people to violate international law.)
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In 2020, Trump told Iran that the United States was prepared to strike Iranian cultural sites, which would likely have been considered a war crime if carried out.
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In 2018, Trump’s first secretary of state, Rex Tillerson, said publicly after his departure that Trump had repeatedly tried to do illegal things.
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In 2019, Homeland Security Secretary Kirstjen Nielsen resigned after clashing with Trump over his repeated desires to do things she thought might be illegal.
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Former Trump Defense Secretary Mark Esper has said Trump in 2020 floated having the military shoot racial-justice protesters demonstrating near the White House in the legs.
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A series of judges this year have indicated the administration has flouted or violated court orders with its deportations or its use of the National Guard on domestic soil.
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Those National Guard deployments represent an extraordinary use of the military, the legality of which is still being sorted out in courtrooms across the country.
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Trump has repeatedly flirted with a scenario in which the laws don’t apply to him because he is all-powerful and doing good things for the country.
It’s certainly provocative for Democrats to raise this issue like they have. But it’s not as if they’ve conjured it out of thin air.
