Would these still be considered unlawful orders from a military command perspective that could be disregarded to prevent the massacre or has SCOTUS basically removed that check on power too?
SCOTUS hasnât touched the Armed Forces Code of Conduct, but now itâs put members of the armed forces in the position of hearing a command from a president who says âdonât worry, it canât be unlawful if Iâm doing itâ and trying to square the circle.
I think the ultimate right answer is that they have a duty to disobey, but at that point youâre gambling on what some particular soldiers believe the law will ultimately be found to say.
A scenario I see playing out is Trump saying go shoot them, military leaders pointing out it's unlawful, Trump offering pardons, more pushback.
Then a limited "go protect neighborhoods" order and someone leaking that Trump offered pardons for shooting protestors, hoping that induces someone.
Yes. I think theyâre still bound by their oath to disobey a plainly unlawful order; someone saying âgo break the law on my behalf and Iâll pardon you afterâ doesnât change *that*.
But it sure affects our probabilistic estimates about what *will* happen.
And he can still fire anyone who says no, right?
Heâll gladly go down the line until he finds someone willing to carry out illegal acts if thereâs a pardon waiting for them. And there will be *someone* willing to join in his reign of terror.
I wonât be the least bit surprised if heâs got us in a constitutional crisis over his legal authority to order Americans killed w/in the first 6 months.
Whether they follow his orders or not (especially once he starts dismissing generals) could be what splinters the military & gets us civil war
Any troop carrying out an order known, or would by a reasonable person be known, to be illegal is personally liable under the UCMJ. The President may under the Roberts Doctrine be immune from the workings of justice, but the private pulling the trigger is not.
Yep. I was trying to explain to someone yesterday that this is the nightmare scenario. Keep firing generals until you get the one willing to shoot civilians and then promise a pardon to everyone involved when they do. In my own experience as a soldier, you'll find someone sooner or later.
There is, however, an interesting jurisdictional issue here. He can do this with active duty and reserve units, but presumably not with national guard, since they answer to the governor of their state who would have to be the intermediary.
Depends if theyâre mobilized pursuant to Title 32 or Title 10; in the former case they remain under formal state control, in the latter they are truly federalized (but then are subject to PCA restrictions on law enforcement activity).
This is why I think getting a navy seal to assassinate a rival is more possible than like, getting âthe militaryâ to seize congress. The first you just need to find one loyal trigger finger, in the second law and norms are going to cause fractures in the force, and you donât know how it shakes out.
A coup I think will go against whoever tries to kick it off, I think, because all these guys overlapping laws, norms, regulations, and trainings are going to come into conflict with each other. In the vacuum, I think institutional instincts overcome the basic âconservatismâ of the organization.
They would be unlawful orders, just like Trump telling Pence not to certify Biden's victory.
The military could refuse them or not, but either way, the president could not be prosecuted for giving unlawful orders.
And he could pardon troops for following unlawful orders.
