Concerns about President Trump’s powers as a commander in chief, as well as the state of the military’s chain of command, are swirling after this week’s Trump-incited attack on the Capitol.
Mixed reports about Vice President Pence’s role in deploying the National Guard to respond to the siege raised questions about whether the chain of command was broken Wednesday, though the Pentagon insists it never was.
Meanwhile, Trump still has the authority to call up troops to quell civil unrest, in addition to nearly unchecked powers to launch a nuclear weapon, and tensions with global hot spots such as Iran could still flare up in the next two weeks.
The national security concerns are contributing to calls for Trump’s removal from office, one way or the other, before President-elect Joe Biden’s inauguration on Jan. 20.
In an extraordinary disclosure Friday, Speaker Nancy Pelosi (D-Calif.) said she called Chairman of the Joint Chiefs of Staff Gen. Mark Milley to discuss options for preventing Trump from starting a war or launching a nuclear weapon.
“The situation of this unhinged president could not be more dangerous, and we must do everything that we can to protect the American people from his unbalanced assault on our country and our democracy,” Pelosi said in a letter to colleagues revealing details of the call.
As Joint Chiefs chairman, Milley is the president’s top military adviser but is outside the chain of command. In the call with Pelosi, Milley “answered her questions regarding the process of nuclear command authority,” his spokesperson said, but did not elaborate on what he said.
Still, the revelation of the call underscored the depths of concern lawmakers have as they consider how to move forward after the Capitol siege.
On Wednesday, shortly after Trump urged his supporters to march on the Capitol, a mob of them overran a police perimeter and smashed through doors and windows to enter the building, assaulting officers and journalists, deploying chemical irritants, ransacking offices and stealing property. Only a small force of 340 Guardsmen were on hand elsewhere in D.C. during the melee.
Lawmakers were forced to halt the process of counting Electoral College votes to certify Biden’s presidential win and to find secure undisclosed locations to hide in while police struggled to regain control of the building for five hours. One Capitol Police officer died from injuries suffered in the riots and one rioter was fatally shot by Capitol Police. Three others died of “medical emergencies.”
After the mob attack, House Democrats appear poised to impeach Trump for a second time, barring administration officials invoking the 25th Amendment, a move Cabinet members do not appear willing to undertake. While impeachment might not move fast enough to remove Trump before the inauguration, if he’s convicted at the end of the process, that could also bar him from public office ever again.
Removing Trump through the 25th Amendment would require Vice President Pence and a majority of Cabinet officials to declare he is unable to fulfill his duties as president, and Pence is reportedly opposed to the idea.
During Wednesday’s mayhem, questions were raised about Trump’s role as commander in chief after acting Defense Secretary Christopher Miller said he spoke about deploying the entire 1,100-troop D.C. National Guard with Pence, Pelosi, House Majority Leader Steny Hoyer (D-Md.), Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Minority Leader Charles Schumer (D-N.Y.). Miller notably made no mention of Trump.
Because D.C. is not a state, its National Guard is commanded by Trump, but he can delegate that authority to the Defense secretary, who can further delegate to the Army secretary.
The New York Times reported Wednesday night that Pence, not Trump, gave the order to deploy Guard troops, while other news outlets said Pence was consulted before Miller gave the order.
The Pentagon disputed that claim on Thursday, with top Pentagon spokesman Jonathan Hoffman saying the decision came from Miller and that Pence was “not in the chain of command ... he did not order it.”
Instead, Miller spoke with Pence and congressional leaders shortly after activating the additional Guard troops, Hoffman told reporters. Earlier in the week, Hoffman said Thursday, Trump directly gave Miller guidance that he should take any necessary action to support the Capitol and other local law enforcement.
Miller “had had conversations in the preceding days with the president where he received guidance to provide assistance as necessary in dealing with any civil disorder that came out of the protests that were scheduled” for Wednesday, Hoffman said.
Pentagon officials have painted the unfurling of chaotic events as a “rapidly evolving situation” that they did not anticipate, despite widespread social media activity suggesting the protests might tip toward violence.
Hoffman told reporters on Thursday that "as recently as Monday or Tuesday, we were informed that additional support from [the Department of Defense] was not needed.”
Assistant Secretary of Defense for Homeland Security Ken Rapuano, speaking alongside Hoffman, said the Justice Department and other law enforcement told Defense Department officials several times that there were no signs there would be "significant violent protests.”
Pelosi on Thursday suggested some blame should fall on Pentagon leaders and asked Miller to respond to “where the National Guard was yesterday.”
Peter Feaver, a civil-military relations expert at Duke University who was a White House adviser to former President George W. Bush, said he’s “not necessarily” concerned about a break in the chain of command Wednesday if the consultations with Pence were about authorities Trump already delegated to Miller, adding “that seems to be the case here.”
Unless and until Trump leaves or is removed office, he sits atop the military chain of command “by virtue of what the electorate decided in 2016,” Feaver said.
Even before Wednesday’s insurrection, Trump’s critics feared he could abuse his commander in chief powers and take some form of military action or use civil unrest as a pretext to call the military up to help keep himself in power.
Now critics are sounding the alarm.
“Given the immense power of the office of president of the United States, including command of the world’s most powerful military, Trump’s capacity to do even greater damage to the United States and the world still remains within his reach,” retired Gen. John Allen, who led U.S. forces in Afghanistan, wrote in an op-ed for Foreign Policy. “After the events of Jan. 6, he must be immediately separated from the authorities vested in him as the nation’s commander in chief.”
The International Crisis Group, which typically warns about instability abroad, wrote in a memo this week that “the extraordinary powers of the U.S. presidency, from the ability to call up armed forces to quell civil unrest to the unfettered power to launch nuclear weapons, rest with a president who fomented an act of insurrection against the legislative branch of his own government.”
In addition to Pelosi’s call with Milley, California Democratic Reps. Ted Lieu, Salud Carbajal and Jimmy Panetta wrote a letter to Miller on Friday urging the acting Pentagon chief to take steps to curb Trump’s ability to order a nuclear strike, citing precedent when President Nixon was preparing to leave office.
In the final days of Nixon’s presidency, then-Defense Secretary James Schlesinger ordered military commanders to check with him or Secretary of State Henry Kissinger before executing a nuclear launch order, Schlesinger revealed years after the fact.
“Donald Trump is detached from reality, angry and acting out,” Lieu, Carbajal and Panetta wrote. “To safeguard our country from potential catastrophe, similar steps to those taken in August 1974 need to be taken now.”
Presidents have sole authority to order a nuclear strike. Military commanders can disobey illegal orders, but arms control advocates argue that is not enough of a safeguard.
“There are no checks or balances, no way for Congress or any government official to intervene, and the presumption of legality for such an order is overwhelming,” Derek Johnson, CEO of Global Zero, said in a statement after the Capitol riots.
On Tuesday, a day before the riots, the commander overseeing U.S. nuclear forces was asked during a conference call with reporters what he would do if Trump ordered a nuclear strike on Iran.
Adm. Charles Richard, commander of U.S. Strategic Command, replied he would “follow any legal order that I am given” and “not follow any illegal orders,” but said if he elaborated further “we're starting to call in civilian control of the military.”
In 2017, when current Vice Chairman of the Joint Chiefs of Staff Gen. John Hyten held Richard’s job, Hyten told a security conference that he would not carry out an illegal order for a nuclear strike but would rather work with the president to find a legal alternative.
Feaver, at Duke, stressed the military “will not carry out illegal orders.”
“If the president, any president, loses self-control and issues crazy orders, the military would go to considerable lengths to make sure that those orders are legal,” he added. “Some of those lengths entail checking in with the rest of the president’s senior team, which is why it is so important that people with key roles in the chain of command stay at their posts and not resign in protest at this point in the presidency."