Six Responses to Six Scenarios

Yet another call for military intervention in domestic politics.

President Donald J. Trump disembarks Marine One Sunday Aug. 9, 2020, at the Elberon Park landing zone in Long Branch, N.J. (Official White House Photo by Shealah Craighead)
Official White House Photo by Shealah Craighead

Thomas Crosbie offers up “Six Scenarios for Military Intervention After January 20” in an effort to shore up John Nagl and Paul Yingling‘s open letter calling for the Chairman of the Joint Chiefs to stage a military intervention in the unlikely event President Trump loses the election but refuses to leave office.

Kori Shake and Jim Golby already explained why this suggestion is both dangerous to the Republic and incongruent with how the military actually works. I joined in, arguing that others who have taken the same oath to the Constitution as General Milley are in a much better position to decide who is a domestic enemy. Crosbie addresses none of our arguments, instead railing against a straw man version of civil-military relations he claims is taught at the staff and war colleges.

That argument is a distraction. Literally no one is suggesting “that the military roll over and accept whatever anti-democratic actions are undertaken by a president clearly intending to do what he can to break the Constitution.” Rather, we argue that it is the job of the military to “support and defend” the Constitution, not interpret it.

Crosbie argues that “A forced transfer of power from Trump to someone else is not a traditional coup but rather a pronunciamento.” But none of the fanciful scenarios he lays out require Milley or any other military officer to anoint their Commander-in-Chief.

Scenario 1: If Biden is perceived as having won and is sworn in by legitimate authorities, but the passage of executive authority (and the nuclear football) is not acknowledged by the federal agencies or some faction therein.

In this scenario, the Congress of the United States has certified Biden as President and the Chief Justice of the United States has further legitimated him by administering the oath. But the federal agencies that Trump has been decrying as a Deep State for four years are somehow going to rally around him, refusing to acknowledge Biden? That’s beyond implausible.

Regardless, the role of the U.S. military in such a scenario is clear: they stop taking orders from Trump at noon on January 20, 2021 and start taking them from Biden. That would be pronunciamento enough, no?

Scenario 2: If Biden is incapacitated and someone else is sworn in over the objections of Trump and his allies, questioning the passage of executive authority.

This is simply Scenario 1 reframed. “Someone else”—one presumes Kamala Harris—is simply substituted for “Biden.” Congress has still backed and the Chief Justice has still sworn in a new President. Trump and his allies can object all they want; there is a new President and the military will take their orders from her.

Crosbie next sets up two scenarios wherein the election has somehow not been adjudicated in the nearly three months before Inauguration Day and the Presidential Succession Act kicks in, elevating Speaker of the House Nancy Pelosi to the presidency, but Trump refuses to accede, citing Constitutional objections.

Scenario 3: Trump may be sworn-in as a stop-gap measure. Here, the integrity of the democratic process will be sacrificed in order to mitigate damage to the Constitution, but the red line will be pushed back.

The Constitution requires a President be sworn in at noon January 20. There is no provision for a “stop-gap.” But, if this somehow happened, what possible role would the United States military have? If Trump is sworn in, owing to whatever political compromise has been brokered, then he’s still the President.

Under a more plausible scenario where Trump and Vice President Pence both succumbed to COVID-19, Jack Goldsmith and Ben Miller-Gootnick outlined the complexity of debate over whether a Member of Congress can Constitutionally be in the line of succession to the Presidency. It is an issue which will remain unresolved until adjudicated—by the United States Supreme Court, not the Chairman of the Joint Chiefs.

Scenario 4: Trump may maintain de facto power and dispense with the symbolic act of being reinstated, in effect denying that a breach of the 20th Amendment took place.

This is just Scenario 3 without an oath.

Scenario 5: Trump takes active steps to suspend the normal functions of government through manipulation of the War Powers Act, Insurrection Act, or some other seemingly lawful cover.

Neither the War Powers Act, the Insurrection Act, nor any other law permits the President to “suspend the normal functions of government,” much less delay the Constitutional turnover of power. Again, we do not have enough facts here to know what happened in the election, the Electoral College, and so forth.

Regardless, Congress and/or the Supreme Court will have made clear who the President is. The military will take their orders from that individual, presumably President Biden.

Scenario 6: Trump uses loyal security agencies to commit acts of violence and intimidation in a traditional, bloody coup. This is the worst of all outcomes but seems least likely of all, and here military intervention would in all likelihood be authorized by Congress.

It is not so much “unlikely” as nonsensical. Who are these “loyal security agencies”? Why are they willing to stage a coup to keep Trump in power?

But, again, this scenario does not require Milley to anoint a President. Congress will have validated the Electoral College’s choice, presumably Biden. Milley and the rest of the members of the armed forces will start taking their orders from him at noon on January 20. If, in the interim, Trump issues manifestly illegal orders, Milley and company will, as is their duty, refuse to follow them.

There is simply no scenario in which the Chairman of the Joint Chiefs or any other military officer will be in a position, whether by coup or pronunciamento, tell us who our President is. The Electoral College will vote and a Joint Session of Congress will count said votes starting at 1 pm January 6.  If the votes are undisputed, a winner will be declared and sworn in at noon January 20. If the votes are disputed, there is a process in place to adjudicate the dispute.  It does not involve the United States armed forces.

FILED UNDER: Military Affairs, Supreme Court, U.S. Constitution
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Sleeping Dog says:

    The idea that the military would come out of the barracks, except under orders of the President, should be abhorrent to all Americans. As of 1/20, we will have one of 3 situations;

    1. Trump has be reeected.
    2. Biden has been sworn in (or Harris if he’s unable to serve. Per 20th amendment)
    3. In the event of a cataclysmic melt down of the election process and neither Trump nor Biden has been certified, Nancy P would be president. (per The Presidential Succession Act of 1947)

    Any effort to remove Trump would be carried out by one or all, Federal Marshals, Secret Service or FBI. No need for the military. The one tiny exception may be, if RW militias took up arms in defense of of Trump, but that would be under order of the President or Acting President.

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  2. CSK says:

    I recall that on June 12 Trump told Harris Faulkner of Fox that he’d go quietly if defeated this coming November; he said something to the effect of going on to do other things. Clearly few people believed him.

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  3. gVOR08 says:

    How about the flip side? In an election contested by Billy Barr and the army of election lawyers the GOPs have lined up, finally decided 5-4 with scathing dissents, Trump orders the Army to clear DC streets of the hundreds of thousands of protesters obstructing his coron inauguration?

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  4. inhumans99 says:

    @gVOR08:

    The problem with your scenario is that there are a million more hypothetical situations you an bring up but we are not the country of China and tanks will not roll out and crush throngs of protesters in U.S. streets. That might be a fantasy in Trump’s and some of his supporters heads but that is where it will remain. I suspect the election will be pretty anti-climactic and Trump will just want to shuffle off to a golf course instead of taking the time and energy to put together a force to crush any insurrection against folks who demand that he leave the White House.

    Keep in mind, he is lazy…he likes to bark loudly but have others do all the actual labor to perform an action that will benefit him. It will be a lot of work for folks to rally around him and organize the military to have Trump’s back and crush any protests, etc….I feel silly typing it out, it is not going to happen.

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  5. Nightcrawler says:

    tanks will not roll out and crush throngs of protesters in U.S. streets.

    I wish I shared your optimism, but I can’t. I could absolutely see this happening. The official government response to ~170,000 dead is, “It is what it is,” “That’s not many people in a country of 330 million,” etc.

    Since the right-wing doesn’t care about 170k dead, they would think absolutely nothing of killing a few hundred or even a few thousand protestors. After all, in a country of 330 million, their deaths wouldn’t “matter.”

    That’s where we are.

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  6. Kathy says:

    My hope is that when all is said and done in November, we’ll find all these worries to be just part of the long human love affair with apocalyptic scenarios.

    I’m not saying Trump, or the GOP, wouldn’t ever try to steal the election. I mean, they’re trying even as we speak, by sabotaging the postal service. But there’s a long stretch between the usual filthy tricks and voter suppression, to an actual coup.

    Lastly, imagining the worse is useless unless one takes steps to prepare to counter it.

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  7. JKB says:

    @Sleeping Dog:

    First you are presuming the Democrats are in the majority in the newly seated House. And that with the prospect of being President, Nancy Pelosi is elected as
    Speaker of the House, even with Democrat control. With the stakes raised, the competition for Speaker would change.

    If there are “RW militia” problems, it will likely be in the form of small units conducting insurgency operations. But now you have to justify putting active duty troops in American cities when such was considered abhorrent when those same cities were being burned by the current rioters/looters/”peaceful” protestors. First you’ll have to show that FBI, US Marshal, and DHS “troops” deployed to the cities cannot resolve the situation.

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  8. Not the IT Dept. says:

    The question isn’t what Trump will do; the question should be what will the Republicans do if they can’t steal or fraud their way to another majority. Trump as an individual will scream and yell and break furniture but the ones to watch are McConnell and his senators. They’re the dangerous ones.

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  9. Scott says:

    Neither the War Powers Act, the Insurrection Act, nor any other law permits the President to “suspend the normal functions of government,” much less delay the Constitutional turnover of power. Again, we do not have enough facts here to know what happened in the election, the Electoral College, and so forth.

    Hasn’t this Administration been able to manipulate Appropriations Law, Contract Law and other processes using Emergency Powers embedded in many other laws. To me this is the most likely scenario (but not that likely). To me, the most problematic aspect of thinking through the possibilities is that the honest people are at a total disadvantage to the dishonest and unscrupulous people. I mean, none of the really bad stuff being done to this country is by Trump alone but rather carried out by a small army of complicit bad actors who manipulate policies and procedures and loopholes in unprecedented ways. There really won’t be any ability by the system to put brakes on anything through normal processes that honest people use.

    BTW, if any military forces are going to be used, it won’t be through the Chairman of the Joint Chiefs but probably through US Northern Command. Chain of command would be President, Secretary of Defense, Commander USNORTHCOM.

    It’s mission:

    As directed by the President or Secretary of Defense provide military assistance to non-military authorities including consequence management operations

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  10. Neil Hudelson says:

    @JKB:

    First you are presuming the Democrats are in the majority in the newly seated House.

    Yes, because that is the point of this blog post. We are exploring hypothetical scenarios. Your hypothetical scenario–that there’s a late breaking surge to the Republicans in such number that they gain enough seats to takeover the house, BUT that that Republican surge doesn’t decisively put Trump over the top–is more unlikely than the coup d’etat scenarios laid out above.

    And that with the prospect of being President, Nancy Pelosi is elected as
    Speaker of the House, even with Democrat control. With the stakes raised, the competition for Speaker would change.

    There’s some more truth here. The dynamics change when a potential Speaker could be President. But, it’s a meaningless quibble you’re making. Sleeping Dog’s point was that the succession act of 1947 pretty clearly lays out how succession works. Sleeping Dog could’ve said “In the event of a cataclysmic melt down of the election process and neither Trump nor Biden has been certified, Nancy P [or whomever wins the Speakership race, which will almost certainly be Nancy P] would be president. (per The Presidential Succession Act of 1947),” but why be so pedantic when everyone understood what s/he was saying?

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  11. Sleeping Dog says:

    @JKB:

    You may be the only R who believes that the Rs have a snowballs chance in hell of gaining a majority in the House, at this point they’ll declare victory if they’re not deeper in the minority.

    @Neil Hudelson:

    Thanks Neil!

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  12. Gromitt Gunn says:

    I assume that Trump and his team have treated the Secret Service and the career WH workers with the same level of contempt and disregard that they treat everyone they perceive as “staff,” and so I can not imagine a world in which the Secret Service is not willing to escort everyone Trumpian from the building five minutes after the Constitution says that they have a new boss.

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  13. Mister Bluster says:

    If there are “RW militia” problems, it will likely be in the form of small units conducting insurgency operations.

    “RW milita”. Who are you talking about?

    The United States Constitution mentions “A well regulated Militia…” and states that “Congress shall have power…To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;..
    Source

    small units conducting insurgency operations.
    Who are these “small units”? Who do you think they want to kill?

    I believe that they are not a militia but are the Insurrectionists that the true Constitutional Milita exists to suppress.
    If you have any information about future actions by these enemies of the Constitution for The United States of America be sure to report it to the proper authorities.

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  14. wr says:

    @Mister Bluster: ““RW milita”. Who are you talking about?”

    He’s talking about small groups of white supremacist meth-heads randomly killing anyone who looks darker than them with their arsenal of assault weapons.

    Or as JKB would describe them, “real Americans.”

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  15. Kathy says:

    I don’t know. I don’t think the First Real American Military Cosplay Militia would be a match to a sergeant and half a platoon of regular US Army Infantry.

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  16. gVOR08 says:

    @Mister Bluster: Yeah. The right seems able to actually field a few hundred armed demonstrators and a handful of “lone wolves” hitting targets with no strategic value. The left, given cause, can turn out hundreds of thousands of demonstrators.

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  17. Mister Bluster says:

    @wr:..Or as JKB would describe them, “real Americans.”

    I don’t expect an honest reply from JKB. Yours is on the mark.

    1
  18. Mister Bluster says:

    @gVOR08:..hundreds of thousands of demonstrators.

    See 2017 Women’s March. If there were any reports of firearms I did not hear of them.

    1
  19. Just nutha ignint cracker says:

    @Kathy:

    My hope is that when all is said and done in November, we’ll find all these worries to be just part of the long human love affair with apocalyptic scenarios.

    Ditto that.
    (If you started encouraging the sort of shorthand, I just engaged in, you could have your own troop of “ditto heads.” 😉 )

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  20. Just nutha ignint cracker says:

    @JKB: Are you really trying to make the argument that people on the left are not as hypocritical as those on the right? After spending several years repeatedly trying to show them that they are? By using the recent BLM protests as your current hobby horse for the argument? REALLY? IS THIS ALL YA GOT?????

    1
  21. Just nutha ignint cracker says:

    @JKB: You’re just an embarrassment! If it were me, I’d have your membership in the vast right-wing conspiracy cancelled right away!

  22. Just nutha ignint cracker says:

    @Kathy: Ditto this, too!

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  23. Kathy says:

    @Just nutha ignint cracker: (If you started encouraging the sort of shorthand, I just engaged in, you could have your own troop of “ditto heads.” )

    And the first prize for undermining one’s own argument goes to you 😉

    1
  24. JohnSF says:

    The thing about the more extreme scenarios is that it would require someone with intelligence, grip, and nerve to pull it off.
    Is Trump such a person? I think not.
    And key people around him? Some maybe superficially smart, but cold nerve in a tight spot? Willing to risk a treason charge? Javanka? Don Jr? Pence? I think not.
    Esper? Meadows? Doubt it.
    Most of the rest of the White House inner posts; no idea.
    Most of the cabinet; who cares about a bunch of corrupt jellyfish?
    Wolf? Hmm.
    Miller? Maybe.
    Pompeo? Perhaps.
    Barr: now he is scary.

    But most likely is, that if it were attempted, unless Trump was locked in a padded “bunker”, he’d cock the whole venture up.

    IMHO Trump wants to up the tension in hopes of being able to lose but cry foul, to boost his post-election media/political fallback appeal to his base. (For the grift and for hoped-for ongoing leverage over GOP)
    And at the same time, and linked to that, perhaps some sort of absurd hope of pressuring a backstage “deal” to save him from legal peril.

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  25. JohnSF says:

    @JKB:

    With the stakes raised, the competition for Speaker would change.

    If so it’s another Democrat, not Pelosi. Big deal.

    … you have to justify putting active duty troops in American cities … First you’ll have to show that (other agencies) cannot resolve the situation.

    Well, so you assert.
    And if President Pelosi or President A. Nother-Democrat decides contrariwise, you, or any other random member of the public have a veto?
    Are now perhaps the Supreme Court and Congress in casual dress with added executive authority?
    That’s one part of the United States Constitution I confess to being unaware of.

    Though in reality, I suspect any “small units conducting insurgency operations” (or alternatively, a tiny number a bunch of crazed cosplaying criminal nutcases) would be mopped up by the FBI fairly toot sweet.

  26. R. Dave says:

    @Neil Hudelson: @JKB:

    We are exploring hypothetical scenarios. Your hypothetical scenario–that there’s a late breaking surge to the Republicans in such number that they gain enough seats to takeover the house, BUT that that Republican surge doesn’t decisively put Trump over the top–is more unlikely than the coup d’etat scenarios laid out above.

    To be fair, the Rs wouldn’t need a majority of seats in the House to toss the election to Trump in the event of an Electoral College tie or other contingent election scenario; they just need to control a majority of state delegations, which they currently do. When the House elects the President under the 12th Amendment, each state delegation gets a single vote, so assuming the Rs still control a majority of state delegations in the new Congress, I have no doubt they would use that procedural quirk to re-elect Trump regardless of the popular vote or majority Rep vote. Likewise, in the Senate, where the VP would be elected, there’s no way McConnell and the Rs would install Harris instead of Pence.

    So, here’s a scenario I could see actually happening, though it’s obviously a stretch. The combination of COVID-related issues, voter suppression, Russian disinformation, bogus fraud claims, etc. create a “fog of war” around the election results in multiple battleground states. When the joint session of Congress is called to certify the Electoral College votes on January 6th, Rs object to one or more particularly murky state electoral votes, and the joint session adjourns for each chamber to vote on the objection. The Senate Rs still have a majority there, so they vote to sustain the objection and disregard the disputed electoral votes. Meanwhile, in the House, enough competitive House races also remain in legal Limbo that House Rs can argue they have a majority of the seated Representatives, and they also vote to sustain the objection. House Ds obviously dispute that argument and the validity of that vote, but Pence, as the sitting VP presiding over the joint session, rules in favor of the Rs on that procedural point. As a result, the electoral votes in question are disregarded, leaving neither Trump nor Pence with an absolute majority of electoral votes, sending the Presidential election to the House and VP election to the Senate.

    At that point, the House Rs use their control of a majority of state delegations to re-elect Trump and the Senate Rs use their majority to re-elect Pence. The whole thing is, of course, contested in the courts, but “in the interest of finality” and “with all due deference to separation of powers”, the USSC declines to overturn the result.

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  27. JohnSF says:

    @R. Dave:
    Article by Daniel Carpenter in Washington Post argues a potential Dem counter: if the state returning executives are asserting dubious voting,

    … use the chamber’s power…(to) be the “judge” of contested elections to the House. …could then seat enough Democrats to give … a majority of state delegations…

    And let the Supremes chew on that.

    As Carpenter points out, it was quite common in the 19th Century for congressional majority parties to reinforce their position by ousting opponents when they could.

  28. sherparick says:

    I would say Trump may be able to rally the following paramilitary forces from Department of Homeland Security and Department of Justice for a possible coup: ICE, Customs & Border Security, U.S. Marshal’s Service, U.S. Bureaus of Prison, National Guard troops from Red States, & state & local police forces such as the 27,000 member NYPD who may be more loyal to Trump then local authorities. A 100,000 armed men & women in the right locations with military not opposing may be enough.

    1
  29. JohnSF says:

    @sherparick:
    Such persons, and crucially their chains of command, may at present be willing to follow orders coming down said chain, and set aside questions of legal dubiety as above their pay grade.
    At present President Trump is, legally, the chief executive.

    To conclude they would be similarly willing to act on behalf of a person whose status is at best in doubt, with the possibility of personal jeopardy perhaps to the point of treason charges?
    That’s another matter entirely.

    And as I said previously, does Trump have the nerve and personal capacity for such a course? And not to muck it up if he tried? Doubtful.

  30. R. Dave says:

    @JohnSF: Interesting! Thanks, JohnSF.

  31. Kylopod says:

    I hate to bring this up, but the future of our democracy may depend on RBG’s health in the next few months.

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  32. Kathy says:

    @R. Dave:

    So, here’s a scenario I could see actually happening, though it’s obviously a stretch.

    If I had the stomach for it, I’d write a quickie novel based in this scenario with trump the Weak as the hero(*), taking back the election and strongly saving the country from the liberalmarxistoscialistn***rs, and market it to the people afflicted with Trump Derangement Syndrome (aka people who support Trump the Weakling).

    ON the one hand, there’d be much demand for it. but do these people even read?

    * I get nauseated just writing that.

  33. Jeremy says:

    @R. Dave:
    You know,…. our government is focused on absolutely the wrong issues in our country! We have been threatened by north korea and the president talk alot of trash talk about what he was going to do and never did!!….. meanwhile north korea made the threat to us and our leader said he was going to Level there country! And then…. nothing else was ever said again about the matter!!… that constitutes a justified reason for full on war with north korea asap!!!!!!!… they said they were going to attack our country and nothing was done about it! now how does that make us look???
    weak, cowardly, retreating from a fight! leaving north korea thinking, well they must be weak in some areas we’re they can’t go to war with us! So this looks like the best time to attack!!! we have multiple nation’s that hate our guts and will gladly banned together and attack leaving America in ruin’s!!!.. what is really going on in the white house!?.. something is up and it’s painted red!! And it comes with a great force! Jesus said, a great nation shall fall and a small nation shall rise! … looks like this is the perfect time for that to happen… Jesus said,there blind! They can not see, there deaf,they can not hear!, they are preoccupied with unfruitful things that will not prophet anything good will come from any of it! This will surely be the downfall of there once mighty and undefeated nation will fall like wax melting in a furnace! Thanks for killing all of us!… stupid government of America..lost!