Preventing a Military Decision About Who Won a Disputed Election

President Donald Trump recently speculated at a campaign rally that he might issue an executive order to prevent his opponent, former Vice President Joe Biden, from becoming president. As he often does, Trump entertained his crowd that night by weaving together sincere and ridiculous statements, truth and falsehoods. It is hard to know whether the president would actually try to use an administrative directive as part of an effort to stay in office.

Unfortunately, the norm-shattering step of a self-serving “I won” executive order from President Trump is conceivable, as is a legal opinion to that same effect from a Justice Department run by an Attorney General who has prioritized protection of the president over the non-partisan, fair, and impartial administration of justice. Trump and his team have demonstrated their willingness to abuse the presidency for personal and political benefit. Trump has repeatedly indicated intent to contest the election if he is not declared the winner. And, serious gaps and ambiguities in election law could leave a disputed election unresolved through inauguration day. In this context, it is prudent to anticipate that Trump and his political appointees might take norm-shredding, legally dubious administrative steps to hold onto power.

Incalculable damage could be done to our nation by a raging election dispute coupled with the incumbent administration ordering the executive branch and particularly the military to recognize Trump as the winner. The harm would be especially severe to fundamental norms of civil-military relations, with terrible implications for our country’s global standing. Despite more than two centuries of American tradition and multiple statements by the Chairman of the Joint Chiefs of Staff (JCS), Gen. Mark Milley, about the U.S. military staying out of elections, the armed forces could face an impossible  decision about whom to recognize as president and give the nuclear codes (and someone has to have them).

Congress can and should act to fix serious problems with the current process for resolving presidential election disputes. In the meantime, the military’s leadership ought to supplement its recent statements. The Pentagon’s senior officials should emphasize that the military must never receive a self-interested order about who has won an election, and they should ask Congress to take preventive action. At the very least, Congress should follow the recommendations of national security and election law experts and appoint a bipartisan panel to resolve any lingering dispute well before inauguration day.

Ample Cause for Concern

Over the past year, bipartisan groups of experts on election law and national security convened by scholars at Georgetown Law and at Ohio State have explored various scenarios for the election and the transition period through inauguration day. In the teeth of a global pandemic, continuing racism-related civil unrest, and violence involving political partisans, these inquiries concluded that violence by militias or other irresponsible actors that disrupts the election or resolution of a dispute is quite possible. Additionally, these analyses concluded that laws regarding domestic use of the military could be abused in an effort to slant the election or the course of a dispute. A slew of media stories have reflected deep and growing concern across the nation, including within the military.

Concern is justified. Examples of abuses of the power by Trump and his team are legion, including refusal to follow longstanding norms and laws about conflicts of interest, violation of the Hatch Act and ethics rules by using government resources for political purposes, and leveraging military aid to Ukraine to force that country’s leaders to announce an investigation of the president’s political opponents. On June 1, President Trump threatened to invoke the Insurrection Act and send the active duty military into American cities. That day, administration officials ordered the use of force – including with National Guard soldiers – to clear non-violent demonstrators exercising their First Amendment rights of free speech and assembly, to make way for what an “angry and appalled” former Defense Secretary James Mattis termed “a bizarre photo op.” Secretary of Defense Mark Esper and fatigue-wearing JCS Chairman Milley found themselves bootstrapped into that photo op to their surprise and regret.

In the weeks and months that have followed, the president has worked to discredit the election in advance, claiming it is “rigged.” He has said he will only accept a result where he wins. He has called for state, local, and (in violation of statute) armed federal personnel to be deployed at polls. At the first presidential debate, the president urged his supporters (some of whom are organizing as the “Army of Trump”) to “go into” the polling stations. Given the opportunity at a presidential debate to condemn a right-wing street fighting militia, Trump instead urged them to “stand back and stand by.” At the debates the president and vice president also refused to commit to a peaceful transfer of power – a terrifying first in American history.

As my Ohio State colleague Ned Foley, Stanford’s Larry Diamond, and other election law scholars have explained, there is a low but very real chance that the presidential election will be disputed and remain unresolved as of inauguration day. To be sure, under our constitutional system the Congress and the courts are responsible for resolving election disputes. In the words of election law experts, however, the law is “shockingly inadequate” and in places “almost unintelligible.” Gaps and ambiguities in the Constitution, in federal statute, and in congressional procedure, together with partisan divides, could result in Congress failing to provide a clear answer about who won by inauguration day. It very nearly happened after the Hayes-Tilden contest of 1876, when the election remained disputed until two days before inauguration and outgoing President Ulysses S. Grant contemplated imposing martial law to prevent simultaneous Republican and Democratic swearing-in ceremonies.

This year, concern has been especially deep about three risks. One is that in the event of controversy (legitimate or manufactured, about unprecedented levels of mail-in absentee voting, foreign election interference, or other irregularities), legislatures and governors in swing states may take actions that result in dueling sets of electoral votes being sent to Congress. The second is that the Senate and the House could be unable to agree on how to count contested electoral votes. And third, the ability of courts to duck “political questions” means that the courts could also fail to provide a clear answer about who is president as of expiration of the current presidential term.

Ultimately, both candidates may be able to advance reasonable claims that they have won. The Speaker of the House may be able to argue, too, that under the law she is Acting President and Commander in Chief at noon on inauguration day because no candidate has succeeded in qualifying as President.

An Inappropriate, No-Win Decision for the Military

In his statement to Congress, Gen. Milley rightly said that the military would look to Congress and the courts regarding the election’s outcome. Like Defense Secretary Esper’s statement earlier in the summer that he does not think the Insurrection Act should be invoked, Gen. Milley’s statement sent a signal to the public, to Congress, to the Trump administration, and to the armed forces.

But if no answers or only contested answers emerge from the other branches of government, then the president may try to resolve the dispute himself, or at least ensure that his subordinates are in his corner. Trump’s recent applause line could become all too real: the president might try to issue an executive order or presidential appointees may arrange for the Justice Department to issue “legal guidance” to the Executive Branch, including the military, stating that the correct way to understand the law and facts is that the Trump was reelected.

What is so alarming about this prospect is that it would amount to the military receiving an order about who won an election. The military would receive an instruction saying that the order-giver gets to continue to give orders after their clear constitutional authority to do so has expired.

No matter how much the military wants to stay out of politics, such an instruction would inevitably force the military to decide whether to comply. Failed by Congress and the courts, and seeing competing partisan claims to the presidency and a self-interested instruction from the incumbent president or his team, the military would be forced by circumstances to decide who to recognize as Commander in Chief, at least until the other branches found a way to resolve the dispute.

Guidance to the military about who won an election is intrinsically different from the kind of legal policy direction that an administration normally and appropriately provides to the Pentagon. The Justice Department’s Office of Legal Counsel and other civilian lawyers, working with presidential guidance, may reasonably resolve for the Defense Department a host of legal questions concerning military matters: military justice, how the latest National Defense Authorization Act governs Defense Department property or military personnel benefits, and the like. A partisan question of election law – one of contested constitutional law and statutory interpretation – is not something about which the president or his lawyers should be instructing our apolitical military. Most importantly, any determination by the current president or his civilian subordinates that the president won the election inherently represents self-dealing. Although administrations often issue orders and guidance that might benefit them in some way (for example by broadly construing an agency’s power or taking politically popular stands on issues), a “we won” instruction is intrinsically different in its insistence that the president’s subordinates recognize the president’s power as extending beyond expiration of his term. That distinguishes the unique “who won the election” question from everyday questions that can be left to regular executive branch processes.

A self-interested Trump administration instruction declaring the current president the winner would put the military in an impossible situation. By deciding whether to comply, and deciding that Trump, Biden, or Pelosi has the better legal claim to the nuclear codes, the military would take a seemingly political stand — and could quickly find itself discredited in the view of a large portion of the country. The problem does not disappear if the military decides not to decide but still leaves the nuclear football with one candidate in a disputed election.  It would be monumentally unfair to everyone wearing a uniform, but the reality is that no matter who the military picks to recognize as president, inevitably millions of Americans would understand the military to have taken partisan sides in the worst constitutional crisis since the Civil War.

Damage to recruitment would be the tip of the iceberg. Public support for the military would probably crater worse than during the Vietnam War. Many Americans would certainly lose faith in our constitutional order itself. In terms of global security, many people worldwide would inevitably take the lesson that even in America democracy does not work and the military picks the president. Democracy’s enemies in Moscow, Beijing, and Al Qaeda would gleefully make sure their publics took that lesson. From Teheran to Belarus, from Turkey to Hong Kong, brave and America-inspired champions of liberty resisting repression would be dealt a terrible blow. A first-order leadership crisis within the world’s primary guarantor of security, consuming and distracting its civilian and military top officials alike, surely would be provocative for our adversaries globally – a golden and unprecedented opportunity for power plays.

In short, the damage to our armed forces, and to all they value and defend, would be totally unfair and potentially catastrophic.

The Military Should Speak, and Congress Must Act

Thankfully, this nightmare is avoidable. Ideally in advance of election day or else early during a post-election day dispute, the military leadership should make clear to the legislative and executive branch leadership that the armed forces do not want to get a “we won” instruction from  the administration.

To address the possibility of such a self-serving order, Gen. Milley or other senior commanders should also ask Congress to take action on a bipartisan basis to resolve current ambiguities in federal election law.  Because fixing election law would take some time, at the very least they should ask Congress to create a bipartisan process for resolving a disputed election.

Trump’s former Director of National Intelligence, former Republican Senator Dan Coats, recently called for such a bipartisan national commission. Experts on election law and governance have called for one, too. But there are no signs so far that Congress is listening.

One promising approach is the Minnesota model: arbitration of election disputes by a bipartisan panel of three well-respected experts. The Republican congressional leaders would get one appointee, the Democrats another, and then the two appointees would together pick the third. Disagreements about the election would be resolved unanimously or on a 2-1 vote. For the good of the nation, House Speaker Pelosi and Senate Majority Leader Mitch McConnell would pledge publicly to accept the decisions of the arbitrators. The panel could operate merely with the agreement of Pelosi and McConnell, or be codified via statute in a manner akin to congressionally-created military base closure commissions (their recommendations take effect unless a supermajority in both Houses of Congress votes them down, which here would prevent the party that did not prevail in the commission’s deliberations from blocking the arbitration’s result from going into effect). Trump might try to disregard the panel or veto such legislation, but if Congress followed even a non-statutorily-based panel’s decisions in executing its constitutional role of counting electoral votes, the mechanism could still work. And if that panel determines Trump is not the rightful president, then Congress (especially the new Congress sworn in on Jan. 3) could impeach and remove him.

It would be uncomfortable for military leaders to make the requests of Congress that this essay recommends. But Gen. Milley’s recent statements about the nation’s ballots and the military’s role provides a precedent, and longstanding practice and the law provide ample ground for military-congressional communications. The military is in constant direct communication with Congress on a multitude of matters. Under 10 U.S.C. 151(f), any member of the Joint Chiefs of Staff may provide their views to Congress on any matter concerning the Department of Defense.

It is hard to imagine any matter more important to the future of the country and our military than whether the nation’s leaders will act to keep the military out of politics. Hopefully, the election will not be close, will not be contested, and any dispute that arises will be rapidly resolved. In any event, Congress has long-overdue work to do fixing our election laws. It should act sooner than later to protect our armed forces and our republic from the possibility of a constitutional crisis, and specifically from the possibility of a self-serving order the military must never receive.

 

Dakota S. Rudesill is Associate Professor of Law at the Moritz College of Law, and Co-Leader of Security & Governance Research at the Mershon Center for International Security Studies, at The Ohio State University. The views expressed here are those of the author alone and do not imply endorsement by the U.S. government. 

About the Author(s)

Dakota S. Rudesill

Associate Professor of Law at the Moritz College of Law at The Ohio State University and Co-Leader of Security & Governance Research at the Mershon Center for International Security Studies. Follow him on Twitter (@DakotaRudesill).