‘Traitorous’ or ‘tabloidish’: Should Milley be court-martialed or Woodward condemned?

“Peril,” the new book by Bob Woodward and Robert Costa, is the latest Washington Beltway bombshell account that can light up Washington, although sometimes those fizzle upon later review. The bombshell in this book is the claim that Gen. Mark Milley, chairman of the military’s Joint Chiefs of Staff, told subordinates to follow him, not then-President Trump, on any order for war, and then allegedly told his Chinese military counterpart that he would warn of any Trump-ordered attack.

According to the book, Milley was deeply alarmed by the Jan. 6 riot on Capitol Hill. His reaction has been well-documented previously, including his oft-quoted reference to the riot being a potential “Reichstag moment” — analogizing Trump’s use of the election controversy to Hitler’s staged burning of the German parliament building in order to grab power.

But Woodward and Costa further claim that Milley stressed the “process” for using nuclear weapons with senior military officers and emphasized that he had to be part of any order. They say Milley made each commander at the National Military Command Center affirmatively state that — according to “procedure” — they would look to Milley to confirm such orders, and Milley considered it an “oath.”

The authors say Milley agreed with House Speaker Nancy Pelosi (D-Calif.) that Trump was crazy and could launch a war in the final days of his presidency. They claim Milley called Gen. Li Zuocheng of China’s People’s Liberation Army four days before the election, on Oct. 30, 2020, and then again on Jan. 8, to assure him no attack would be launched — and, if there were to be an attack, that Milley would alert his counterpart in advance.

Washington scandal books are a genre unto themselves. Each has some key revelation crafted to fuel a scandal and sales; often, by the time fact-checkers catch up, the support for the claim is largely irrelevant. That was the apparent case with Michael Wolff’s book, “Fire and Fury: Inside the Trump White House,” which unleashed a torrent of alarm over claims that top officials were moving to secretly record Trump, in order to declare him incompetent under the 25^th Amendment. Journalists later found an array of errors in those accounts, including core claims.

Some reporters like Fox News Channel’s Pentagon correspondent, Jennifer Griffin, have expressed doubt about the Woodward-Costa account. Griffin noted that “there were 15 people on the video teleconference calls,” with Chinese officials, “including a representative of the State Department,” and there was no indication of such alarming content. Pentagon officials insist that the accounts were taken out of context and the authors misrepresented routine meetings and calls. 

The book’s account could not be more serious for Milley. While some pundits praised Milley for allegedly taking control over nuclear weapons and war declarations, the allegations — if true — could subject Milley to a possible court martial for usurping the authority of the commander in chief under Article II of the Constitution. Many of us criticized Trump for his Jan. 6 rally speech and his failure to immediately call for his supporters to leave the Capitol. There was palpable fear in Washington that Trump would not accept defeat, fear fueled by reckless references of Trump supporters to declarations of martial law.

Yet such concerns — even if held in good faith — would not justify what is claimed by Woodward and Costa. If Milley told subordinates they were to await his concurrence on an attack order, he would have elevated his authority over the express authority delegated to a president. There is a “process” that includes the chain of command. As commander in chief, a president can always deliver a direct order to any subordinate — and Milley would not have the authority to countermand the commander in chief.

Furthermore, if Milley promised to warn the Chinese of an attack, it could be an act not of insubordination but of treason.

Military officers have long wrestled with such difficult questions. As shown in the Nuremberg trials after World War II, military officers cannot simply claim to “follow orders” when those orders constitute war crimes. Moreover, the U.S. military has long recognized the need for officers to refuse a clearly unlawful order; as shown in United States v. Calley, concerning the My Lai massacre, a clearly unlawful order must not only be refused but, if followed, can lead to court martial.

The problem with this book’s account is that Trump clearly would have had the authority to issue an attack order. Moreover, he presumably would have had a stated reason, even if Milley doubted the justification. The standard under the military code is not a “reasonable basis” to believe in the legitimacy of an action but the actual legality of an action.

What the book describes is not necessarily an unlawful order but an allegedly unstable president — and there is a process for dealing with that eventuality. It is called the 25^th Amendment. If Milley felt Trump was no longer capable of exercising his authority as commander in chief, then he had a duty to raise Trump’s removal — not to unilaterally assume the powers of commander in chief.

Under Section 4, Vice President Pence and a majority of the Cabinet could have signed a declaration to Congress that Trump was incapable of holding office. In such a highly unlikely circumstance, Pence immediately would have assumed power, and Trump would have had four days to object. Pence and the Cabinet then would have had to send a second declaration. Both chambers of Congress then would have had to vote by two-thirds to remove the president. Congress has 21 days for such a vote — and, in this case, Trump’s term in office would have ended within that period.

It is doubtful that Trump could have been removed under this process — but Milley is not allowed to create a second option. There is no license for improvisation in the Constitution on this question. In a system based on civilian control of the military, there can be no blurring of the lines of authority. Good intentions are no defense.

Under Article 94 of the Uniform Code of Military Justice, mutiny and sedition traditionally have been characterized as “the gravest and most criminal of the offenses known to the military code.” If the Woodward-Costa account is true, it is unclear why subordinate military officers did not come forward with concerns over an unlawful order — not from Trump but from Milley. That is why the book’s sensational account seems driven more by sales than sources.

Congress should look into this account and deal not only with Milley’s alleged actions, but also the options allowed to officers in such circumstances. Milley has not been shy about publicly addressing controversies related to the military, from the Jan. 6 riot to white supremacy, but he has been slow to deny these accounts. The book says Milley treated his alleged order as an “oath” that subordinates would not act on Trump’s order alone — yet it is his own oath that is now in question. Starting his military career in 1980, Milley swore to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and to “bear true faith and allegiance to the same.” He needs to establish that he did not lose faith with the Constitution by creating an ad hoc chain of command, with himself as the effective commander in chief.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.