If the commander in chief attempts to ignore the election’s results, you will face a choice.
Dear General Milley:
As chairman of the Joint Chiefs of Staff, you are well aware of your duties in ordinary times: to serve as principal military advisor to the president of the United States, and to transmit the lawful orders of the president and Secretary of Defense to combatant commanders. In ordinary times, these duties are entirely consistent with your oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic…”
We do not live in ordinary times. The president of the United States is actively subverting our electoral system, threatening to remain in office in defiance of our Constitution. In a few months’ time, you may have to choose between defying a lawless president or betraying your Constitutional oath. We write to assist you in thinking clearly about that choice. If Donald Trump refuses to leave office at the expiration of his constitutional term, the United States military must remove him by force, and you must give that order.
Due to a dangerous confluence of circumstances, the once-unthinkable scenario of authoritarian rule in the United States is now a very real possibility. First, as Mr. Trump faces near certain electoral defeat, he is vigorously undermining public confidence in our elections. Second, Mr. Trump’s defeat would result in his facing not merely political ignominy, but also criminal charges. Third, Mr. Trump is assembling a private army capable of thwarting not only the will of the electorate but also the capacities of ordinary law enforcement. When these forces collide on January 20, 2021, the U.S. military will be the only institution capable of upholding our Constitutional order.
There can be little doubt that Mr. Trump is facing electoral defeat. More than 160,000 Americans have died from COVID 19, and that toll is likely to rise to 300,000 by November. One in ten U.S. workers is unemployed, and the U.S. economy in the last quarter suffered the greatest contraction in its history. Nearly 70 percent of Americans believe the country is on the wrong track. The Economist estimates that Mr. Trump’s chances of losing the election stand at 91 percent.
Faced with these grim prospects, Mr. Trump has engaged in a systemic disinformation campaign to undermine public confidence in our elections. He has falsely claimed that mail-in voting is “inaccurate and fraudulent.” He is actively sabotaging the U.S. Postal Service in an effort to delay and discredit mail-in votes. He has suggested delaying the 2020 election, despite lacking the authority to do so.
The stakes of the 2020 election are especially high for Mr. Trump; in defeat, he will likely face criminal prosecution. The Manhattan District Attorney is investigating the Trump Organization for possible bank and insurance fraud related to the overvaluation of financial assets. New York’s Attorney General is conducting similar investigations, having successfully subpoenaed Trump’s financial records from Deutsche Bank. Mr. Trump allegedly pressured the U.S. ambassador to Great Britain to pressure the British Government to move the British Open golf tournament to Trump Turnberry Resort in Scotland. This incident is but one of many examples of self-dealing that may lead to federal criminal charges against the president.
Given this dizzying array of threats not merely to his political prospects, but also his liberty and wealth, Mr. Trump is following the playbook of dictators throughout history: he is building a private army answerable only to him. When Caesar faced the prospect of a trial in Rome, he did not return to face his day in court. He unleashed an army personally loyal to him alone on the Roman government. No student of history, Mr. Trump nevertheless appears to be following Caesar’s example. The president’s use of militarized Homeland Security agents against domestic political demonstrations constitutes the creation of a paramilitary force unaccountable to the public. The members of this private army, often lacking police insignia or other identification, exist not to enforce the law but to intimidate the president’s political opponents.
These powerful crosscurrents—Mr. Trump’s electoral defeat, his assault on the integrity of our elections, his impending criminal prosecution, and his creation of a private army—will collide on January 20. Rather than accept the peaceful transfer of power that has been the hallmark of American democracy since its inception. Mr. Trump may refuse to leave office. He would likely offer as a fig leaf of legitimacy the shopworn lies about election fraud. Mr. Trump’s acolytes in right-wing media will certainly rush to repeat and amplify these lies, manufacturing sufficient evidence to provide a pretext of plausibility. America’s greatest Constitutional crisis since the Civil War will come about by a president who simply refuses to leave office.
America’s political and legal institutions have so atrophied that they are ill-prepared for this moment. Senate Republicans, already reduced to supplicant status, will remain silent and inert, as much to obscure their complicity as to retain their majority. The Democrat-led House of Representatives will certify the Electoral College results, which Mr. Trump will dismiss as fake news. The courts, flooded with cases from both Democrats and Mr. Trump’s legal team, will take months working through the docket, producing reasoned rulings that Trump will alternately appeal and ignore.
Then the clock will strike 12:01 PM, January 20, 2021, and Donald Trump will be sitting in the Oval Office. The street protests will inevitably swell outside the White House, and the ranks of Trump’s private army will grow inside its grounds. The speaker of the House will declare the Trump presidency at an end, and direct the Secret Service and Federal Marshals to remove Trump from the premises. These agents will realize that they are outmanned and outgunned by Trump’s private army, and the moment of decision will arrive.
At this moment of Constitutional crisis, only two options remain. Under the first, U.S. military forces escort the former president from the White House grounds. Trump’s little green men, so intimidating to lightly armed federal law enforcement agents, step aside and fade away, realizing they would not constitute a good morning’s work for a brigade of the 82nd Airborne. Under the second, the U.S. military remains inert while the Constitution dies. The succession of government is determined by extralegal violence between Trump’s private army and street protesters; Black Lives Matter Plaza becomes Tahrir Square.
As the senior military officer of the United States, the choice between these two options lies with you. In the Constitutional crisis described above, your duty is to give unambiguous orders directing U.S. military forces to support the Constitutional transfer of power. Should you remain silent, you will be complicit in a coup d’état. You were rightly criticized for your prior active complicity in the president’s use of force against peaceful protesters in Lafayette Square. Your passive complicity in an extralegal seizure of political power would be far worse.
For 240 years, the United States has been spared the horror of violent political succession. Imperfect though it may be, our Union has been moving toward greater perfection, from one peaceful transfer of power to the next. The rule of law created by our Constitution has made this miracle possible. However, our Constitutional order is not self-sustaining. Throughout our history, Americans have laid down their lives so that this form of government may endure. Continuing the unfinished work for which these heroes fell now falls to you.
Lest you forget:
“I, Mark A. Milley, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
The fate of our Republic may well depend upon your adherence to this oath.
John Nagl and Paul Yingling
John Nagl is a retired Army officer and veteran of both Iraq wars.
Paul Yingling, a retired U.S. Army lieutenant colonel, served three tours in Iraq, another in Bosnia, and a fifth in Operation Desert Storm.