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The first words I want to write before inadvertently appearing to pre-judge this situation regarding the revelations in a book about General Milley are these: As the co-author of the book in which these astonishing assertions were made is one Bob Woodward and considering the fact that I would trust that scurrilous purveyor of lies about as far as I could throw my car, everything I say here must be understood to be based on the all-important qualifier: “if proven to be true.”
If the allegations are true, under my reading of the Constitution, the applicable laws and provisions of the Uniform Code of Military Justice, it is clear that the Chairman of the Joint Chiefs of Staff is at least arguably guilty of Treason and it is even more clear that he could be charged and successfully prosecuted for Mutiny and Sedition against the United States of America.
I will approach this most serious set of facts by using the tried-and-true formula of writing briefs: Facts, Law, Argument, and Conclusion. In doing so, I note a couple of things preliminarily. One is that it is very difficult for me to approach the subject of the highest-ranking General Officer or our Military appearing for all the world to have engaged in conduct bordering on either Treason or Mutiny and Sedition as dispassionately as I would try to approach writing a brief for a client, but I will endeavor mightily to do so. If I slip, please give me a little slack as there are really few polite words I could use to describe my feelings about and opinion of General Milley, who was a disgrace to his uniform (ergo, by extension, mine) long before the recent news of his violation of his Oath of Office. The second thing: we have had the phrase “Constitutional Crisis” bandied about so often in the last decade, or more, it has almost lost its meaning. However, what we are facing with this news is quite possibly the most serious Constitutional Crisis we have seen in many years. Or, put another way, if a Member of the Military, especially the highest-ranking Member of the Military, arrogating to himself the final ipse dixit whether to obey a lawful order of the duly elected President, his Commander-in-Chief, is not a Constitutional Crisis, we have well and truly lost our Republic.
I. The Facts (As Reported):
The actions which gave rise to this crisis, while breathtakingly audacious and almost certainly illegal on several different levels, are fairly straightforward. The basics are set forth in the Washington Post article which first broke the story on Tuesday, September 14, 2021:
Twice in the final months of the Trump administration, the country’s top military officer was so fearful that the president’s actions might spark a war with China that he moved urgently to avert armed conflict.
In a pair of secret phone calls, Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, assured his Chinese counterpart, Gen. Li Zuocheng of the People’s Liberation Army, that the United States would not strike, according to a new book by Washington Post associate editor Bob Woodward and national political reporter Robert Costa.
One call took place on Oct. 30, 2020, four days before the election that unseated President Donald Trump, and the other on Jan. 8, 2021, two days after the Capitol siege carried out by his supporters in a quest to cancel the vote.
The first call was prompted by Milley’s review of intelligence suggesting the Chinese believed the United States was preparing to attack. That belief, the authors write, was based on tensions over military exercises in the South China Sea, and deepened by Trump’s belligerent rhetoric toward China.
“General Li, I want to assure you that the American government is stable and everything is going to be okay,” Milley told him. “We are not going to attack or conduct any kinetic operations against you.”
In the book’s account, Milley went so far as to pledge he would alert his counterpart in the event of a U.S. attack, stressing the rapport they’d established through a backchannel. “General Li, you and I have known each other for now five years. If we’re going to attack, I’m going to call you ahead of time. It’s not going to be a surprise.”
Li took the chairman at his word, the authors write in the book, “Peril,” which is set to be released next week.
In the second call, placed to address Chinese fears about the events of Jan. 6, Li wasn’t as easily assuaged, even after Milley promised him, “We are 100 percent steady. Everything’s fine. But democracy can be sloppy sometimes.”
Li remained rattled, and Milley, who did not relay the conversation to Trump, according to the book, understood why. The chairman, 62 at the time and chosen by Trump in 2018, believed the president had suffered a mental decline after the election, the authors write, a view he communicated to House Speaker Nancy Pelosi (D-Calif.) in a phone call on Jan. 8. He agreed with her evaluation that Trump was unstable, according to a call transcript obtained by the authors.
Believing that China could lash out if it felt at risk from an unpredictable and vengeful American president, Milley took action. The same day, he called the admiral overseeing the U.S. Indo-Pacific Command, the military unit responsible for Asia and the Pacific region, and recommended postponing the military exercises, according to the book. The admiral complied.
Milley also summoned senior officers to review the procedures for launching nuclear weapons, saying the president alone could give the order — but, crucially, that he, Milley, also had to be involved. Looking each in the eye, Milley asked the officers to affirm that they had understood, the authors write, in what he considered an “oath.”
The chairman knew that he was “pulling a Schlesinger,” the authors write, resorting to measures resembling the ones taken in August 1974 by James R. Schlesinger, the defense secretary at the time. Schlesinger told military officials to check with him and the chairman of the Joint Chiefs before carrying out orders from President Richard M. Nixon, who was facing impeachment at the time.
Though Milley went furthest in seeking to stave off a national security crisis, his alarm was shared throughout the highest ranks of the administration, the authors reveal. CIA Director Gina Haspel, for instance, reportedly told Milley, “We are on the way to a right-wing coup.”
Thus, it appears, subject to the caveat stated above about the accuracy of the reporting in this book, that a military leader, very possibly with the “moral” support of the Speaker of the House, although that is unclear at the time of this writing,
… defied civilian control over the direction of America’s foreign policy, and did so through secret talks with our chief adversary on the global stage.
Under every president, we hear about “[name] derangement syndrome”; there was Bush Derangement Syndrome, and Obama Derangement Syndrome. But only Trump Derangement Syndrome seems to have led the ostensible upholders of “norms” and “democracy” to treat as no big deal actual violations of democracy’s most sacred norms in the service of thwarting Donald Trump.
Civilian control over the military is not something to be jettisoned when you disagree with the people’s choice. Generals playing politics at the highest levels of the military is a game as old as the country, but secretly speaking with America’s foreign enemies to defy the policy decisions of the elected leader of the United States crosses a line, a bright red one. With all the blabber about norms, here is one that truly matters.
The American people deserve to know the content of those phone calls. If this reporting is true – and it must be taken with a grain of salt given Bob Woodward’s track record – Gen. Milley must be fired and, depending on the content of the calls, may even be justly prosecuted.
With regard to the Speaker’s role in this sordid chain of events, the following is reported in the new book Peril under discussion:
Back on January 8, Speaker Nancy Pelosi announced that she had spoken with Gen. Mark Milley about limiting President Trump’s ability to launch nuclear weapons. Here’s how NPR reported it at the time:
In a letter to her Democratic House colleagues on Friday, Pelosi said that she had spoken with the chairman of the Joint Chiefs of Staff, Gen. Mark Milley, about “available precautions for preventing an unstable president from initiating military hostilities or accessing the launch codes and ordering a nuclear strike.”…
Pelosi later told her caucus she had received assurances that there were safeguards in place, according to a source on the call. It is unclear what those safeguards might be.
The new book “Peril” by Bob Woodward and Robert Costa reveals the actual conversation that took place when Pelosi called Milley:
Woodward and Costa exclusively obtained a transcript of the call, during which Milley tried to reassure Pelosi that the nuclear weapons were safe.
Pelosi pushed back.
“What I’m saying to you is that if they couldn’t even stop him from an assault on the Capitol, who even knows what else he may do? And is there anybody in charge at the White House who was doing anything but kissing his fat butt all over this?”
Pelosi continued, “You know he’s crazy. He’s been crazy for a long time.”
According to Woodward and Costa, Milley responded, “Madam Speaker, I agree with you on everything.”
As an aside, while I try to follow the news closely (My Lady often tells me I follow it too closely for my own mental health, or what little is left at this point) I have not heard of Her Royal Fount of All That Is Good, Speaker Pelosi, wondering out loud, since “President” Biden assuming office “… is there anyone in charge at the White House?”. Maybe I missed that one.
And, as if Milley’s secret phone calls were not egregious enough, he went even further to assure that he had taken control of the civilian authority mandated by the Constitution, according to an article detailing that phase of these unconstitutional machinations:
It was apparently after that call that Milley held a secret meeting at the Pentagon where he asked senior military officers to take an oath that no matter what Trump said, no military action could be taken without his involvement. He literally went around the room to make sure each person agreed. That’s actually not how the system works. As the NPR story I linked above pointed out:
Under current rules, Trump is the only person in the government who can order a nuclear strike.
“The President has sole launch authority, and he does not have to check that with anyone,” says Elaine Scarry, a professor at Harvard University and author of Thermonuclear Monarchy, a book about launch authority.
The authors of “Peril” write that Gen. Milley was “overseeing the mobilization of America’s national security state without the knowledge of the American people or the rest of the world.” They add that “‘some might contend that Milley had overstepped his authority.” It certainly sounds that way.
It seems that the then-head of the CIA, Gina Haspel, got involved with the series of clandestine phone calls, with language showing just how deeply entrenched the Deep State (of which she is a card-carrying member) really is and how deep is its hatred was for President Trump:
Milley told CIA Director Gina Haspel: ‘Aggressively watch everything, 360.’ The authors write that Milley was concerned Trump might go ‘rogue.’
Haspel had raised her own concerns after Trump refused to accept the results of the November election. ‘We are on the way to a right-wing coup. The whole thing is insanity. He is acting out like a six-year-old with a tantrum,’ she told him.
‘This is a highly dangerous situation. We are going to lash out for his ego?’ she told Milley in a call.
II. The Law
In considering the law governing this situation and, especially the gravity with which the founders viewed the crime of Treason, it is significant to note that it is the only crime spelled out in the Constitution. Article III, Sec. 3, Para. 1 provides:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.
This definition is carried over into the statute defining the punishment upon conviction of Treason, in 18 US Code, Sec. 2381:
18 U.S. Code § 2381 – Treason
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
Also applicable to this issue is whether Milley might be charged with Mutiny and Sedition. Here is the provision of the Uniform Code of Military Justice under which he could be charged:
10 U.S. Code § 894 -UCMJ Art. 94. Mutiny or sedition
(a)Any person subject to this chapter who—
(1)with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;
(2)with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition;
(3)fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.
(b)A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.
III. Argument and Conclusion
Before setting out my argument and conclusion, let me put to rest any notion that I am naïve enough— quite risible on its face considering my age!–to think that our mentally vacant “President” and the gang of power-mad manipulators around him will take the necessary steps to have Milley removed and prosecuted as would obviously be called for here, in the event sufficient evidence is brought forward to corroborate these allegations. Or, and I genuinely hope I am wrong in this, that the Democrat-controlled House and/or the evenly split Senate will get serious about at least mounting a legitimate investigation, which means one without the endless groaning on and on by politicians in their speeches at hearings, so that the actual evidence may be brought out into the open upon which an informed charging decision, if any, may be made.
To assure I do not appear to be wandering into areas in which I have little or no experience, I state upfront that I have practiced very little criminal law, no Federal criminal law, and have never been involved in the Military Justice System, thank goodness. That said, my conclusion, based on the facts as reported and on the statutory provisions as I read them, is that Milley could properly be charged with Mutiny and Treason in that he not only was involved in a plan to “usurp or override lawful military authority” he was the creator and putative leader of the plan to reserve the decision to launch weapons to himself. I would argue that one does not need to have extensive experience in these fields to see how these words fit precisely what it is alleged Milley did, especially gathering together his high ranking officers and getting an “oath” from them that they would defer to him, not the President of the United States, if a launch order came from the White House.
However, there are ambiguities that make the answer to the question of whether he committed Treason more difficult. According to a piece by Andrew McCarthy with National Review, a commentator with vast experience as a Federal Prosecutor and an excellent analyst, had the following to say with regard to the threshold question which would have to be answered before a Treason prosecution could go forward:
First, if proved, what Milley did was not treason. What he did was outrageous — a firing offense. But China is a rival state, with which we have a complex relationship that, regrettably, includes deep economic and financial entanglements. It is not an enemy state as that term is understood for purposes of the crime of treason.
However, his colleague, Dan McLaughlin, at National Review had a slightly different take on the situation, opining as follows
Now, what General Milley did in this instance is not, in the proper sense of the word, treason, given that China is not an open enemy in war. [UPDATE: On further reflection, however, it could be construed as an offer to commit treason, given that the promise to give notice of a future attack presupposes action at odds with a direct, armed conflict ordered by the commander in chief.] It probably violates the terms of the Logan Act, but that statute is possibly unconstitutional and should be repealed. (I confess I do not know enough of the Uniform Code of Military Justice to say whether or not this violates any of its provisions.) It is not even quite a military coup. But it skates awfully close to that line.
Professor Jonathan Turley, a highly esteemed and respected Professor of Law at George Washington University Law School, seems to feel that a Treason charge could be successfully prosecuted. In his analysis published in The Hill, he had this to say:
The book’s account could not be more serious for Milley. While some pundits praised Milley for allegedly taking control over nuclear weapons and war declarations, the allegations — if true — could subject Milley to a possible court martial for usurping the authority of the commander in chief under Article II of the Constitution. Many of us criticized Trump for his Jan. 6 rally speech and his failure to immediately call for his supporters to leave the Capitol. There was palpable fear in Washington that Trump would not accept defeat, fear fueled by reckless references of Trump supporters to declarations of martial law.
Yet such concerns — even if held in good faith — would not justify what is claimed by Woodward and Costa. If Milley told subordinates they were to await his concurrence on an attack order, he would have elevated his authority over the express authority delegated to a president. There is a “process” that includes the chain of command. As commander in chief, a president can always deliver a direct order to any subordinate — and Milley would not have the authority to countermand the commander in chief.
Furthermore, if Milley promised to warn the Chinese of an attack, it could be an act not of insubordination but of treason.
In the interest of fair and balanced analysis, it should be noted that Gen. Milley’s spokesperson issued a statement on his behalf which, if anything, seems to dig his hole even deeper than it was before. It is set forth and analyzed in a piece at Powerline and contains this discussion:
Bob Woodward alleges in a forthcoming book that General Mark Milley conspired with senior military officers of the Chinese Communist Party against his boss, President Donald Trump. Yesterday I expressed skepticism that any American military officer would do such a dishonorable thing, while noting that Milley had not yet disputed Woodward’s charges.
Now, based on this statement by Joint Staff Spokesperson Col. Dave Butler, it appears that Woodward’s reporting is, shockingly, accurate. Col. Butler’s statement was issued in response to Woodward’s report and the firestorm of controversy that it ignited. Thus, the most significant fact about the statement is that it does not deny the truth of any part of Woodward’s account. Rather, Col. Butler tries to put Woodward’s reporting in a sympathetic light:
His calls with the Chinese and others in October and January were in keeping with these duties and responsibilities conveying reassurance in order to maintain strategic stability.
So Milley did talk with his Chinese counterparts at the time alleged by Woodward. His only defense is that those conversations were normal. They “convey[ed] reassurance.” Well, that is what Woodward wrote: Milley told the Communist Chinese that if President Trump intended to launch an attack against them, he, General Milley, would betray his country by giving them advance warning. No doubt that was reassuring to the CCP.
This collection of authorities has been set out to illustrate the serious questions of interpretation involved in this set of facts and to underline it is impossible to predict, with any reasonable certainty, where all of this will go legally. However, it is, sadly, easy to predict where it will go politically which is just one more piece of evidence supporting the view of so many in this day and time that we are in a serious and dangerous state of –to use the title of the book under consideration- Peril.
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