President Trump attends a briefing from his senior military leaders, including then-Defense Secretary James Mattis (left), in the Cabinet Room at the White House, October 23, 2018. (Leah Millis/Reuters)In a time of crisis, their synchronized chorus of complaints, falsehoods, and partisan appeals to resistance threaten the very constitutional order they claim to revere.
Sometimes retired generals are deified. Ulysses S. Grant and Dwight D. Eisenhower won two presidential terms in landslide elections.
At other moments, war heroes such Generals Douglas MacArthur and Curtis LeMay were vilified as near insurrectionaries for their blistering attacks on sitting presidents.
In such a climate, the Uniform Code of Military Justice, which became effective law in May 1951, prohibits active generals from disparaging their commander in chief — in the way perhaps MacArthur had bitterly pilloried then-president Harry Truman over the Korean War. Article 88 of the UCMJ makes it a crime to voice “contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State.”
But no one quite knows, and debate continues over, whether such codified prohibitions on free expression apply to retired generals receiving military pensions. Yet, given the spate of recent “contemptuous words against the President” leveled from retired generals, it seems that few worry about regulation AR 27-10 of the code: “Retired members of a regular component of the Armed Forces who are entitled to pay are subject to the UCMJ. (See Art. 2(a)(4), UCMJ.) They may be tried by courts-martial for offenses committed while in a retired status.”
A Dangerous Precedent
In 2016, former chairman of the Joint Chiefs and retired general Martin Dempsey wrote an emphatic op-ed criticizing retired generals, not running for office, who politicked or by extension attacked a sitting president. Dempsey perhaps was influenced by a number of retired top officers who were then in high-profile roles in the 2016 election on both sides. He apparently wanted to immediately stop the intrusions of warring generals into the campaigns, given that Trump had won the political endorsements of 88 former officers, versus the 95 retired generals and flag officers who offered Hillary Clinton their formal support. “The American people should not wonder where their military leaders draw the line between military advice and political preference, Dempsey wrote. “And our nation’s soldiers, sailors, airmen and Marines should not wonder about the political leanings and motivations of their leaders.”
The Need for Restraint
So the issue of proper military conduct versus First Amendment rights for retired generals remains nebulous. Perhaps in such a void, a confused public could at least expect four rules of general decorum and common courtesy when our top retired military leaders go on the attack against a sitting president.
One, a retired general need not under any circumstances stoop to invoke Nazi Germany, Hitler, or Fascism to criticize the current commander in chief.
Two, any disparagement should not hint at any active resistance to, much less the removal of, an elected president other than through constitutionally mandated elections.
Three, the condemnation should rest on clear factual evidence, not emotive anger or partisan disagreement.
Four, there should be no semblance of coordination among retired military officers. They should avoid even the inadvertent appearance of a sudden chorus of like-minded retired military officers acting in concert to attack the policies of their current president with whom they disagree, and whom they disparage in personal terms.
Indeed, to do otherwise, whether by intent or inference, would suggest a harmonized effort to nullify the authority of an elected president — a dangerous escalation to extra-legal efforts that would be a first in American history.
Unfortunately, in this age of dissension, a number of our most esteemed retired generals and admirals, many of them heroic combat veterans, in their fury at President Trump, have not met these modest ethical expectations. However well-meaning, they seem to have little inkling of how their advocacy and speech have only further polarized a divided country whose streets are currently in chaos.
Reductio ad Hitlerum
Unfortunately, retired general Barry McCaffrey has compared Donald Trump to the Fascist dictator Benito Mussolini, owing to Trump’s crime of canceling a few newspaper subscriptions of some federal agencies.
During chaotic conditions at the U.S. southern border, former general Michael Hayden regrettably tweeted a picture of the Birkenau death camp. Was he clumsily suggesting that the administration policy of border detention, in part inherited from the prior administration, was analogous to the Nazi Final Solution in which 6 million were exterminated? If not, then why would a general manipulate for partisan purposes the photo of the most infamous ground on earth?
Esteemed general James S. Mattis, former defense secretary in the Trump administration and a deservedly iconic figure, recently suggested that Trump fostered disunity in much the same way that Nazis did. In a statement published in The Atlantic, Mattis wrote:
Instructions given by the military departments to our troops before the Normandy invasion reminded soldiers that “The Nazi slogan for destroying us . . . was ‘Divide and Conquer.’ Our American answer is ‘In Union there is Strength.’ We must summon that unity to surmount this crisis — confident that we are better than our politics. Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try. Instead, he tries to divide us. We are witnessing the consequences of three years of this deliberate effort. We are witnessing the consequences of three years without mature leadership.
Could not Mattis, at a time of national tensions, have been more careful to choose another, less polarizing simile to reflect his charge that Trump was eroding U.S. unity in the fashion of the genocidal dictatorship of Adolf Hitler that threatened our troops at D-Day? And how exactly is an elected president emulating the divisiveness of the Nazis?
The ‘Treason’ Card
As far as inferring the need to resist an elected president, former general James Clapper dubbed the president a “Russian asset.” That is, Clapper all but accused his commander in chief of being a traitor.
That unsubstantiated charge was also sadly echoed by General McCaffrey in March 2018 in less uncertain terms:
Reluctantly I have concluded that President Trump is a serious threat to US national security. He is refusing to protect vital US interests from active Russian attacks. It is apparent that he is for some unknown reason under the sway of Mr. Putin.
If that charge of treason against the commander in chief were true, then McCaffrey had an obligation to produce evidence to support it.
Perhaps more ominous, Retired admiral William McRaven, an authentic American war hero and effective battlefield commander, in New York Times editorial in October 2019, following several earlier essays and interviews, suggested that America was being attacked from “within” by Trump — an eerie warning of disloyal “internal enemies” that has an ominous McCarthyite pedigree in American politics.
McRaven then mysteriously doubled down, saying that the current president should be removed from office, “the sooner, the better”:
And if this president doesn’t understand their importance, if this president doesn’t demonstrate the leadership that America needs, both domestically and abroad, then it is time for a new person in the Oval Office — Republican, Democrat or independent — the sooner, the better.
Words have consequences. So what does this ultimatum (“if . . . . if . . . then”) of “sooner” exactly mean? In their infinite wisdom, do retired generals and admirals such as McRaven know best what qualifies as insufficient presidential leadership worthy of removal? Or is it the people who know best — and express it through national elections every four years?
Sadly, such loose and inflammatory talk of supposedly necessary preemptory removal of an elected president has been part of the national discourse since the first weeks of the Trump administration. On Inauguration Day we heard a celebrity talk of “blowing up” the White House, and soon it was on to decapitating, shooting, or hanging the president. Almost immediately, in January 2017, we witnessed a failed impeachment attempt, following efforts to subvert the constitutionally mandated voting of the Electoral College.
In February, McRaven channeled Edmund Burke’s purported warning about “the triumph of evil” in connection with President Trump: “When presidential ego and self-preservation are more important than national security — then there is nothing left to stop the triumph of evil.” This admonitory quote was often revived during the 1930s, concerning the rise of Nazi Germany. What are active, younger officers to think of such invidious comparisons?
Surely if the best and brightest of their profession warn that the current president is evil, is a traitor, or requires Fascist or Nazi similes to convey critics’ disdain, then would not constitutionally loyal officers on duty take it upon themselves to “save” the republic from such an existential threat, and remove an elected president? Is not that the logical trajectory of these often-shrill warnings?
Or, as an earlier incarnation of General Dempsey wisely put it in 2016: “And by the way, you’re making life much more difficult for those who continue to serve, who actually are accountable for the actions of the United States military as they deploy them across the land in response to elected officials.”
In 2017, just ten days after Trump’s inauguration, former Obama state department official Rosa Brooks authored an essay in the prestigious journal Foreign Policy, with the unfortunate insurrectionary title “Three Ways to Get Rid of President Trump Before 2020.”
Among her three options was a quite scary discussion of a military coup, akin to the takeover in the thriller Seven Days in May. Brooks urged high-ranking officers, if faced with an order they believed unconstitutional, to deliberately, collectively disobey the commander in chief and presumably “get rid of” him by force:
[This] possibility is one that until recently I would have said was unthinkable in the United States of America: a military coup, or at least a refusal by military leaders to obey certain orders. . . . I can imagine plausible scenarios in which senior military officials might simply tell the president: “No, sir. We’re not doing that.”
Oddly, earlier in 2016, when some were worried that Trump and Clinton were marshaling retired officers to sign competing endorsements, Rosa Brooks warned that retired military leaders were not the sorts to guide presidential policies (e.g., “Just because you’ve worn a uniform doesn’t make you uniquely qualified to offer political judgment on matters of state.”) But that was then, before Trump’s victory.
So retired military generals must take care how and what they write, especially in times of tension and controversy — in order that the views of such esteemed leaders are not misinterpreted by the active military. In this regard, General Mattis, in his recent Atlantic essay, further wrote:
We are witnessing the consequences of three years without mature leadership. We can unite without him, drawing on the strengths inherent in our civil society. This will not be easy, as the past few days have shown, but we owe it to our fellow citizens. . . . We know that we are better than the abuse of executive authority that we witnessed in Lafayette Park. We must reject and hold accountable those in office who would make a mockery of our Constitution.
Unfortunately, some outraged citizens might wish practical details and instruction if they were to follow Mattis’s advice. At the present time in June 2020, in which particular ways are citizens to “reject” the president and hold him accountable? That is, the general’s call that Americans “can unite without him” might suggest to some that they need to bypass the president in some such fashion, as if the citizens can navigate the country without their current elected head of state, who in some unspecified way has mocked the Constitution.
Of course, any patriot might rally to such a call to stop an elected president from making a mockery of our Founding documents. But that would be a subjective precedent that in the future might justify resistance to any president one felt acted in an unconstitutional and thus treasonous fashion.
Retired general John Allen essentially has accused Trump of destroying America as we have known it. “The slide of the United States into illiberalism may well have begun on June 1, 2020,” he wrote in Foreign Policy last week. “Remember the date. It may well signal the beginning of the end of the American experiment.” So what exactly should happen now to stop that cancer and save America?
Do these generals pause to contemplate the explosive and relativist precedent they are in danger of establishing or the pushback that their activism will incur from the public — traditionally from the progressive side, which in the past has severely criticized retired generals for corporate lobbying and partisan politicking, for serving on the boards of defense contractors on the basis of their prior Pentagon experience, and for using their security clearances to amplify their supposed media expertise?
When President Obama or his administration decided not to send the Iran treaty to the U.S. Senate for ratification, or refused congressional subpoenas in the Fast and Furious gun-running scandal, or nullified current federal immigration law by executive orders, or monitored the communication data of Associated Press journalists or allowed the IRS to politicize its mission before an election, or was caught on a hot mic offering a seeming quid pro quo of diminishing U.S. missile defense in Europe in exchange for the Putin regime’s providing him space during his own 2012 reelection effort, or used unsubstantiated opposition research from a hired foreign national to interfere in, and surveil, an oppositional political campaign and to disrupt a presidential transition, there were many who then argued that he was violating the Constitution.
But those views were subjective assessments. They would not have been grounds to suggest that the president was a Mussolini, or to offer Nazi similes, or to “bypass” or “reject” his presidential authority, or to remove him “sooner” rather than later from office.
Rage without Facts
As far as facts, once again we rue the generals’ emotion and their lack of evidence.
In secret and while under oath in front of a House Intelligence Committee, Clapper admitted that he had no proof for his charge of treasonous Trump-Russian collusion.
In other words, a retired general was knowingly lying to the public. He was implying that his president was treasonous, while swearing under oath at roughly the same time that such a charge had no basis in fact. And that was not the first time this decorated retired military officer had lied — Clapper by his own admission earlier gave false testimony under oath to a congressional committee.
McCaffrey has not rescinded his charge that the president of the United States was under the sway of a foreign leader, despite 22 months and over $30 million invested in a comprehensive investigation by Robert Mueller that found no basis in fact for allegations of treason such as the one McCaffrey lobbed.
The esteemed and sober retired admiral and chairman of the Joint Chiefs Mike Mullen, in a recent blistering attack on the president’s employment of federal troops to restore order in the nation’s capital, charged that they had teargassed peaceful protestors in Lafayette Park.
But so far that accusation remains in heated dispute, with the Pentagon and National Park Service issuing a denial and saying that federalized troops did not employ a tear-gas agent to clear Monday’s protesters in Lafayette Park or use excessive force. CBS reports that Trump recently had ordered 10,000 active-duty troops into American streets were yet another fabrication. Mullen further accused Trump of aiding America’s enemies abroad by clumsily trying to ensure calm in the nation’s capital:
Whatever Trump’s goal in conducting his visit [to the burned St. John’s church], he laid bare his disdain for the rights of peaceful protest in this country, gave succor to the leaders of other countries who take comfort in our domestic strife, and risked further politicizing the men and women of our armed forces.
General Mattis additionally has alleged that during these times of chaos there was only “a small number of lawbreakers.” But, sadly, that assertion is factually untrue and its preposterousness has already been the subject of scathing commentary. It is contradicted by the on-the-ground evidence of large swaths of downtown Minneapolis, Manhattan, Philadelphia, and Santa Monica that were looted, smashed, and in some instances burned to the ground. Thousands of struggling Americans have seen their businesses or jobs destroyed in the nationwide chaos of looting, rioting, and arson.
Scores of innocent police officers have been injured and some shot and killed. New York Police Department officers have been the target of systematic physical violence and abuse by those who claimed they were merely protesting injustice. Even progressive governors have now reluctantly called up state National Guard forces because their own police forces could not ensure safety for fellow citizens given the sheer number of rioters and looters.
In fact, even supporters of violent protests no longer argue that the rioting is done by, “a small number,” as Mattis claimed. Instead, they justify the violence as being, in their view, part of the proud American tradition of resisting tyranny.
Finally, the grieving brother of George Floyd, brutally killed while in custody of the Minneapolis police department, has implored protestors to cease their violent acts. He was not referring to “a small number.”
A Coincidental Chorus
Within the space of a few hours, there seemed to have been a synchronized chorus from a number of retired generals and admirals — Allen, Mattis, McCaffrey, McRaven, Mullen, Stavridis, and others — voicing shared and scripted warnings to the public of the existential dangers posed by their president.
Indeed, and ironically, General Dempsey, who himself, as noted above, in 2016 warned fellow retired generals such as Allen about just such public criticism and partisanship, now has joined the chorus in rebuking the president for employing federal troops to quell the violence. Again, that was then, and this is now, as Dempsey explains his recent putdown: “The idea that the president would take charge of the situation using the military was troubling to me.”
Many of the outspoken generals and admirals have defended their extraordinary public criticism by suggesting they are supporting the Constitution in their belief that the current president has violated its tenets by deploying federal troops where they were not needed, in Washington, D.C. Perhaps. But charges of violating the Constitution have also been the boilerplate justification of every dissident and political general — from John C. Fremont and George McClellan to Edwin Walker and Douglas MacArthur — who challenged quite unpopular presidents whose policies they thought dangerous to the nation.
Yet strangely, for all the angst about the Constitution, we require current retired officers to cite specific legal instances where Trump has explicitly violated any specific constitutional statute. Plenty of U.S. presidents, both Democratic and Republican, from the 19th century to the modern age — including Presidents Madison, Lincoln, Cleveland, Hoover, Kennedy, Johnson, and George H.W. Bush — have called on federal troops to restore order during civil unrest, sometimes in support of state governors, sometimes out of worry that violence had spiraled out of their control. A clear majority of recently polled Americans now favor the use of federal troops to quell violence where needed in the present chaos. Are they guilty of abetting their anti-constitutional commander in chief?
These are indeed scary times that are force multipliers of the tragic racial divisions that followed the killing of George Floyd. We still do not know exactly how, why, and when the COVID-19 virus reached the U.S. mainland from Wuhan, China. Debate rages over whether it was wise to enforce a national lockdown — the first mass quarantine in American history — based on models predicting possibly millions of deaths.
Never before has a shelter-in-place policy, still under fierce and often partisan debate, all but destroyed by fiat the U.S. economy.
2020 is an election year, in which every presidential decision and each response of the opposition has become politicized. In sum, it is not the time for unelected retired generals and admirals to accuse an elected president of being disloyal, a traitor, a fascist, or worthy of being removed or in some way neutralized.
Generals Know Best?
It is a truism that the First Amendment exists to protect unpopular rather than orthodox speech and expression. The same principle surely holds true concerning the tradition of retired military officers not engaging in partisan polices against a sitting president in a fashion that violates the codes of military conduct that are applicable to their active-duty brethren.
It is easy to follow such protocols in the case of beloved presidents in times of calm. But the statutes were put in place in the pivotal year of 1951 to prevent popular, heroic generals from interfering or hammering unpopular presidential decisions in times of uncertainty, when ruled by widely derided presidents, amid growing popular resistance — a reality that our outspoken military leaders, I fear, have failed to appreciate.
Trump is controversial. Like Obama, he has hired and fired high-ranking generals and has not been shy about explaining why. When attacked, he replies bluntly. But again, such controversial presidencies are exactly why there are protections for them against the attacks of unelected military leaders in a constitutional republic. Harry Truman’s approval fell to 21 percent — less than half of Trump’s present popularity — after he fired General MacArthur. And his ratings never recovered. The generals who allege that Trump is either a fascist or a traitor or that he should be removed are neither elected nor are themselves constitutional scholars. But they are engaged precisely in what the UCMJ statute sought to discourage by threat of criminal penalty.
Finally, there are unfortunate paradoxes and ironies in the generals’ constant reference to the Constitution and the supposed violations of its laws by President Trump.
We just experienced an exhaustive impeachment and subsequent acquittal that concluded that there was no actionable violation of constitutionally described high crimes and misdemeanors. Yet the nonpartisan inspector general of the Department of Justice has found a plethora of illegal and unconstitutional acts by some of the highest intelligence officials in the country.
As we deal with a tragic killing, and subsequent social unrest, the Senate Intelligence Committee and special federal attorneys are investigating the former leadership of the FBI, DOJ, and CIA.
From the once-classified evidence now released by congressional committees, the director of National Intelligence and the inspector general, we see that these top officials may well have deliberately deceived a federal FISA court, altered official documents submitted to a federal judge, lost or erased critical subpoenaed evidence, lied repeatedly under oath, illegally surveilled U.S. citizens, entrapped federal officials, inserted informants into a political campaign, and illegally leaked redacted names to the media for partisan political advantage and hatred of the controversial president-elect.
Our retired military officials, who so eloquently have cited the perceived dangers that the current president presents to the Constitution, which prompted their purportedly nonpartisan action, perhaps wisely — but also selectively and perhaps hypocritically — once kept completely mum about those apparent constitutional violations by a then-sitting president. In such egregious cases, they seemed to have followed the past custom and practice of avoiding controversial commentary, even though those under current federal investigation include a high-ranking retired general: James Clapper.
In such a polarized climate, it seems reasonable to wish that even well-meaning retired generals would at least avoid incendiary comparisons of the president to America’s former Nazi or Fascist enemies.
They could eschew factual inaccuracies.
They might resist veiled hints about resisting or bypassing supposed alleged traitors in the White House.
And they should not coordinate their efforts in an ominous manner that could undermine the often tenuous civilian and military balance at the core of our constitutional system.
But that modicum of restraint was apparently asking too much in these times of bitter factionalism, rank partisanship, and social chaos.