“Legal Orders” and Trump’s Military
Authoritarians don’t take power by openly flouting the law. They look for pretexts and legal theories.
1. The Military
Last week my Shield of the Republic buddies did a special episode in the aftermath of the Trump/Hegseth conclave with America’s flag officers. It’s absolutely worth your time.
(Click above to watch on YouTube or here to add the show to your player of choice. Bulwark+ members can watch ad-free here.)
Eternal caveat: Eric and Eliot have forgotten more about foreign policy and military affairs than I will ever know. So I disagree with them reluctantly and with full humility. But I found their analysis of the Quantico event deeply troubling—not because I think they are incorrect, exactly, but because their thinking reveals how hostage we are to extremely optimistic assumptions.
Let me give you a précis of their discussion:
Hegseth and Trump are vile and their performance was ugly and un-American.
But the professional reaction of our flag officers was encouraging.
These generals, admirals, and senior enlisted advisors were probably spooked by what they saw from Trump and Hegseth and are unlikely to comply with illegal, unconstitutional schemes.
Rank-and-file troops were likely similarly shaken by what they saw, especially the commander-in-chief’s obvious mental decline.
If American troops are ordered to fire on American civilians, they are unlikely to comply, because of their deep, contextual relationship with the Constitution.
If Trump were to attempt a second coup, the military would probably not aid him.
The disorganization and stupidity exhibited by Trump and Hegseth suggests that if they attempt a second coup, they will likely be unsuccessful again.
Eric and Eliot ended the show on a reasonably hopeful note, but when the credits rolled I reached for my Xanax because in their analysis the continuity of liberal democracy depends on whole lotta assumptions and hopes and probablys:
Existing senior officers are disgusted by Trump. (Maybe?)
There will not be significant turnover in the flag officer ranks wherein generals who are disgusted are replaced by generals loyal to Trump. (How do we know this?)
In order for the the military to be corrupted, some significant percentage of the flag officers would have to be illiberal Trump loyalists. Merely finding a handful of such men and elevating them to key positions would not be enough. (We hope.)
Enlisted troops do not have a significantly different view of Trump than the general officers. (This would be contra existing evidence.)
American soldiers would not fire on American civilians. (Again: We hope.)
If Trump attempts a second coup he will not have the military actively on his side. (Maybe?)
If Trump attempts a second coup it will probably be unsuccessful because his confederates are foolish. (“Probably” doing a lot of heavy lifting here.)
Eric and Eliot look at the Quantico meeting and imagine all the ways in which things can go right for our system to survive. For me, the very act of having to engage on the existential question suggests that we are further along than people may realize. If you have to say that a second coup attempt probably won’t work, you are implicitly granting that (a) a second coup attempt is possible and that (b) it could conceivably succeed.
Which puts us at an extraordinary hinge point. A place our country has only been perhaps twice before in its history.
Another thing that worries me is the concept of “legal orders.”
A lot of Eric and Eliot’s sanguinity rests on the notion that military officers will resist illegal orders if/when they emanate from Trump and/or Hegseth.
But what is an illegal order?