The Crisis of June 2020: the Case of the Retired Generals and Admirals and the Clarion Calls of Their Critics in Lex Non Scripta (historic) Perspective

JurisdictionUnited States,Federal
CitationVol. 99
Publication year2021

99 Nebraska L. Rev. 594. THE CRISIS OF JUNE 2020: THE CASE OF THE RETIRED GENERALS AND ADMIRALS AND THE CLARION CALLS OF THEIR CRITICS IN LEX NON SCRIPTA (HISTORIC) PERSPECTIVE

THE CRISIS OF JUNE 2020: THE CASE OF THE RETIRED GENERALS AND ADMIRALS AND THE CLARION CALLS OF THEIR CRITICS IN LEX NON SCRIPTA (HISTORIC) PERSPECTIVE


Joshua Kastenberg [*]


TABLE OF CONTENTS

I. Introduction .......................................... 595


II. Fears of a Standing Army, George Van Horn Moseley, and Retiree Jurisdiction ............................... 604
A. Standing Army Fears .............................. 605
B. George Van Horn Moseley: A Forgotten Extreme in Civil-Military Relations ............................ 609
C. UCMJ Jurisdiction over Retirees and Presidential Authority to Command Respect .................... 615


III. Generals and the Quest for the Presidency ............ 620
A. The Successful Run: Taylor, Grant, and Eisenhower ....................................... 620
B. The Unsuccessful Candidates: Scott, McClellan, and Hancock .......................................... 625


IV. Case Studies: The Lex Non Scripta of Conduct ......... 629


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A. The Case of General Edwin Anderson Walker ...... 633
B. In the Shadow of Smedley Butler: Generals Shoup, Gavin, and Ridgway ............................... 639
C. The Case of John Singlaub ........................ 642


V. Conclusion: Donald Trump and the June Crisisof 2020 ............................................... 644


I. INTRODUCTION

In the first week of June 2020, former Secretary of Defense James Mattis, a retired United States Marine Corps general with substantial wartime experience, along with other retired senior military officers took the unusual step of condemning President Donald Trump for his response to nation-wide demonstrations demanding equal justice and an end to the existence of systemic and institutional racism. [1] Shortly afterward, former Chairman of the Joint Chiefs of Staff, Colin Powell (who had also served as the Sixty-Fifth Secretary of State), likewise argued that President Trump "drifted away" from the Constitution and undermined democracy. [2] Joining Powell and Mattis were, as a sampling, retired Admiral Michael Mullen, and retired generals John Allen, Martin Dempsey, Michael Hayden, and Tony Thomas. [3] This led to more than one pundit questioning whether the senior officers who opposed President Trump were unwise, if not constitutionally ignorant, in their actions. [4] For instance, Victor Davis Hansen, an emeritus professor, alleged that several of the retired generals and admirals op-

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posing the administration's actions used "contemptuous words" against President Trump and then suggested that a court-martial might be a reasonable response. [5] Others, such as Peter Feaver and James Golby, argued that the military's high approval rating and unrivaled public trust is placed in jeopardy by such conduct of retired generals and admirals. [6]

Yet, those pundits who were critical of the retired generals and admirals overlooked two basic features of the Constitution's demand for the military's subordination to the civil government. First, the Constitution was designed with the fear of standing armies in mind. [7] To that end, the Constitution's framers intended for weakened presidential ability to order the military to perform domestic police-type duties. [8] As articulated by Thomas Jefferson in the Declaration of Independence, one of the foremost grievances of the men who led the Revolution against the Crown in 1776 was King George III's use of military forces to police the colonies. [9]

It is critical to place into context the events which led to the actions of Powell and the other retired senior officers (hereafter Powell et al.). Hundreds of thousands of United States citizens and residents exercised their constitutional rights to freedom of speech and to peaceably assemble in protests after the police killing of George Floyd, an unarmed, Black United States citizen in Minneapolis. [10] President Trump threatened, if not attempted, to order the active duty military

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to police cities experiencing spikes in unrest. [11] There is both a constitutional and statutory infirmity to President Trump's actions. The Insurrection Act of 1807 and the Posse Comitatus Act of 1878 limit the ability of a president to use the military for domestic law enforcement reasons. [12] In spite of these limitations, President Trump, with the apparent support of Attorney General William Barr and the acquiescence of both Secretary of Defense Mark Esper and a combat-fatigue, uniformed Chairman of the Joint Chiefs of Staff General Mark Milley, emerged from a security bunker to tour the St. John's Episcopal Church while unidentifiable law enforcement, including the possible use of the active duty military and National Guard, used or displayed less-than-lethal weaponry against citizen-demonstrators. [13]

Nationwide violence did, in fact, occur, even though the majority of the demonstrators had peaceful intentions and the sources of violence have been muddied throughout social media. It is possible that an unaligned confluence of independent persons subscribing to right-wing ideologies and persons with anarchic or far-left goals aided the

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violence through electronic messaging and physical participation. [14] Instances of violence included fatal attacks on police officers trying to maintain peace, as well looting and arson on private properties and government buildings. [15] Mass upheavals have occurred before in American history, but the degree to which retired senior military officers with substantial command and combat experience characterized a sitting president as a threat to the Constitution, and therefore unfit to hold the position of Commander in Chief, is remarkable. [16] But as remarkable as the actions of the former officers are, their actions were not unforeseeable.

One example, but by no means the only, of the foreseeability of the public criticisms of President Trump from Powell et al. occurred less than one year before the demonstrations. On October 18, 2019, retired Admiral William H. McRaven, the former commanding officer of the United States Navy Seals, penned an op-ed in the New York Times excoriating President Trump for abandoning the United States' allies, as well as leaving myriad of oppressed ethnic minorities across the globe to try to survive under dictatorial regimes. Titled Our Republic Is under Attack from the President, McRaven's article was not a call to overthrow President Trump, but rather, for the nation's voters to find a new national leader through the electoral process. [17] McRaven also publicly condemned President Trump's pardons of service members convicted or accused of war-crime type offenses. [18] McRaven couched his criticisms as permissible within the "military ethos," yet some

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scholars and pundits criticized him as undermining the traditional civil-military relations construct. [19]

If it were possible to view McRaven's conduct without assessing whether the viewpoints he champions are "good for democracy" or "bad for democracy," a historical analysis will evidence that the current environment of retired generals and admirals taking political positions is hardly a danger to the Republic. This history includes retired generals who have vied for the presidency in wartime, as well as those who publicly tried to delegitimize a presidential administration. Indeed, United States history is replete with retired generals who publicly espoused disruption to the government, often for right-wing causes. And, while there is a broad consensus that the military must remain apolitical, elected officials, their staffs, and their supporters, rather than retired senior officers alone, make the goal of an apolitical military more difficult. [20] Although debates on whether the political speech and criticisms against presidential administrations by retired senior officers undermines the professional officer ethos are certainly worthwhile, it is, in light of the nation's military and political history, a gross distortion to claim that the conduct of Powell et al. undermines either the Constitution or imperils the goal of an apolitical military.

This Article is divided into five parts. Part II begins with a brief study of the framers' standing army fears. Within this study is a recognition that while the Insurrection Act of 1807 and the Posse Comita-tus Act of 1878 set limits on the use of the military in the United States, the two acts have historically been non-justiciable in the courts. The Part next presents a case study of General George Van Horn Mosely, who retired from the Army as the deputy chief of staff- the second general in command-in 1938. It is the premise of this study that because Moseley actively campaigned to undermine President Franklin Delano Roosevelt, and align the United States to Nazi ideology, he was, notionally, the most dangerous of retirees. Yet, the

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United States' institutions of government remained strong...

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