Global Military Justice Reform contributor Prof. John C. Dehn's important and timely article has been published in the latest issue of the Brooklyn Law Review: The Good Officer: President Trump, General Milley and the "Necessity” of Constitutional Fidelity, 90 Brook. L. Rev. 1 (2024). Here is the abstract:
Actions taken by General Mark Milley, the former Chairman of the Joint Chiefs of Staff, to prevent an abuse of presidential power during the waning days of the Trump administration prompted a range of reactions and concerns. This Article leverages these events to explore the circumstances under which a member of the armed forces or senior executive branch official may have a moral or legal right or duty to disobey presidential orders or authorizations that entail a clear violation of the Constitution or federal laws, or that abuse lawful authorities in ways that would subvert the Constitution’s text or vital principles. Further, this Article proposes a theory of necessity grounded in one’s oath to support and defend the Constitution—a necessity of constitutional fidelity—to guide officials faced with the constitutional dilemma of an elected Chief Executive and Commander-in-Chief contemplating a clear and obvious abuse of power. Although there is a growing literature addressing intra-executive branch bureaucratic resistance to questionable presidential policies, this Article seeks to stimulate a more robust conversation regarding the circumstances under which such resistance should become outright disobedience or defiance.
Comments are welcome -- real names only, please.
In proposing to recognize a necessity defense, I wish JD had engaged with the not insubstantial caselaw that has rejected it, or at least flagged its potential recognition as a problem. Our casebook cites US v. Washington, 57 M.J. 394 (C.A.A.F. 2002); United States v. Olinger, 50 M.J. 365 (C.A.A.F. 1999).
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