F. Unlawful Orders
In a recent memorandum, Gen. Mark Milley, the Chairman of the Joint Chiefs of Staff, reminded all military personnel that they are not required to, and should not, comply with unlawful orders, even if from the President of the United States. Ten former secretaries of defense (Ashton Carter, Dick Cheney, William Cohen, Mark Esper, Robert Gates, Chuck Hagel, James Mattis, Leon Panetta, William Perry and Donald Rumsfeld) have similarly reminded service personnel that unlawful orders are not to be obeyed.
The obligation to refuse unlawful orders is not limited to military services. All federal employees and contractors have a similar obligation not to carry out unlawful orders from superior officers within their agencies or firms. Under the present circumstances of a continuing pattern of unlawful behavior by the President and his representatives, we remind all federal employees of the importance of taking appropriate steps to ascertain the legality of orders or directives which tell them to take action that they believe may be unlawful. These steps should include (a) consulting with counsel to confirm the accuracy and legality of any questionable orders; (b) recording or making carefully preserved notes of any such questionable orders; and (c) including witnesses on any telephone call or email chain relating to such orders. In evaluating the lawfulness of questionable orders and directives, it is fair, under present circumstances, to view them in the context of the President’s now-apparent orchestrated effort to defy the results of the November 3 Presidential election and to see individual actions as part of that effort. If independent counsel is not available to provide advice to a government employee who receives such a questionable order, it may be possible to obtain pro bono representation.