Contingency Planning for Presidential Interference with the Election

One of the great strengths of the U.S. military is its planning, encompassing contingencies big and small. With sadness, I urge my former colleagues in the military services and at the Department of Defense level to plan now for the possibility of actions by the president to disrupt the forthcoming election or even to vitiate the election results. It is distressing that we have come to this point, where strategic planners must prepare for serious threats to our democracy from the president of the United States, and where the military must be prepared—better prepared than recent events have shown it to be at present—to avoid becoming an instrument of the demise of the great American experiment in democracy and the long and uneven march to a just society.

After the initial trickle of military voices decrying the president’s threat to invoke the Insurrection Act to send the military into our cities becoming a powerful stream, it seems likely that the president and his enablers have abandoned—at least for now—thoughts of invoking the Insurrection Act.  

But the president and his enablers have found another way of usurping local and state control over law enforcement. They’ve sent first to Portland and now to Chicago, Albuquerque and other “Democrat-run cities” personnel from the Department of Homeland Security (DHS), ostensibly to protect federal facilities. The protection of federal facilities is a legitimate mission of DHS, but the DHS personnel have been deployed away from federal facilities, and have disrupted, detained, and intimidated protesters, whether they were approaching a federal facility or not. The president has even intimated that the federal agents have been directed to protect monuments in which the federal government has no legitimate interest. The DHS personnel are federal law enforcement personnel, unlike members of the military. But they are dressed in camouflage uniforms, and their presence in the streets of Portland and elsewhere seems calculated to suggest a military operation. The presence of federal officers in Portland has done nothing to bring peace to the streets and seems intended to perpetuate and deepen disruptions.

This usurpation of local policing powers comes as the president’s abysmal performance of genuine federal responsibilities has led to cratering polling results and, most ominously, the president’s incessant drumbeat of attacks on the integrity of the forthcoming election. The president has refused to say that he would accept the results of that election, if he did not win, and he has even raised the prospect of postponing the election. Before the 2016 election, Mr. Trump also made statements refusing to commit to accepting the election results—as reckless and irresponsible as those statements were, he wielded no power at the time. Today, he is the president of the United States, wielding enormous power. This makes his statement a genuine threat to the rule of law and to the nation’s life as a democracy. The deployment of DHS officers has the flavor of a dress rehearsal for actions to disrupt and distort the upcoming election. 

The military, sadly, must plan how to respond if the president attempts to wield the power of the presidency to thwart the electoral process, whether through the Insurrection Act or through other means.

Each military member, and every federal official, swears to support and defend the Constitution of the United States. Under the Constitution, all “executive and judicial officers” of the United States and of the states likewise must take an oath or affirmation to support the Constitution. The president’s possible abuse of office to prevent his losing the election (both before and after the date of the election itself) would put such oaths to the test in ways that are completely unprecedented. 

How can today’s military members stay true to their oaths, and support and defend the Constitution?  

First, we must look to our senior-most political leadership, especially Secretary of Defense Mark Esper.  He has a critically important role, and he needs to be aware that the judgment of history will be focused on him. He must make it clear that the department will not carry out illegal orders, no matter what the president says. He has done this before, when he stated at a Pentagon briefing that the military would follow the rules of armed conflict and not attack cultural sites with no military value, despite the President’s threat to do so in Iran a few days previous. Making it clear that the military is a creature of law is a vital foundation for the support and defense of our Constitution.

Likewise, it is critical for senior military leaders—like the chairman of the joint chiefs, the chiefs of staff of the military branches and the combatant commanders—to reiterate that their loyalty is to the Constitution and to the nation, and not to any particular individual.

What is an illegal order will sometimes be clear—for example, if Trump attempts to prevent the electors selected in the various states from meeting and voting, or if he attempts to prevent the Congress from receiving the votes of the electors, military members would clearly be obligated to disobey any order to effectuate his purpose. And if Trump refused to leave the White House, as soon as his term is over the military would be obligated to disregard any order purportedly issued by Trump.  An order to delay the elections, which the president has no authority to issue, would likewise have to be ignored.

But as the controversy over the president’s consideration of invoking the Insurrection Act showed, it is not always clear what an illegal order is. In the case of the Insurrection Act, the ability of the president to send in troops in the absence of a request from a state’s governor depends on questions of degree and judgment. More precisely, it hinges on Advertise on IT Security News.