War Stories

New Revelations About Trump’s Final Days in Office Raise a Much More Urgent Question

The Joint Chiefs chairman’s actions are concerning, but the constitutional implications are worse.

Mark Milley in military uniform speaking into a mic
Gen. Mark Milley, chairman of the Joint Chiefs of Staff, speaks at the Pentagon on Sept. 1. Saul Loeb/Getty Images

As always happens just before the splash of a new Bob Woodward book, the Washington Post published an article on Tuesday summarizing a few big scoops from the veteran reporter’s latest opus. For Peril, co-written by Robert Costa, one scoop isn’t quite as big a deal as it seems at first glance, while the other scoop might be much bigger.

The hyped one reveals that, after the Jan. 6 storming of the Capitol, Gen. Mark Milley, chairman of the Joint Chiefs of Staff, summoned senior officers to review the procedures for launching nuclear weapons. In the Post’s words, Milley concluded that “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.’ ”

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Milley is also quoted as saying that, in doing this, he “pulled a Schlesinger,” a reference to Secretary of Defense James Schlesinger, who—in the summer of 1974, as a drunken, unstable President Richard Nixon faced impeachment—told the JCS chairman at the time, Gen. George Brown, to consult with him before carrying out any “unusual orders” from the White House.

But the two incidents are very different. Milley did not try to interfere with the president’s power to launch nuclear weapons. Rather, according to a more detailed account of Woodward and Costa’s book on CNN:

Speaking to senior military officials in charge of the National Military Command Center, the Pentagon’s war room, Milley instructed them not to take orders from anyone unless he was involved. “No matter what you are told, you do the procedure. You do the process. And I’m part of that procedure,” Milley told the officers, according to the book. He then went around the room, looked each other in the eye, and asked them to verbally confirm they understood.

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Again, this is very dramatic, but not as big a deal as it might seem. Neither summary mentions that the JCS chairman is not in the chain of command for any military operations, nuclear or otherwise. Official protocols require that the chairman be consulted before the president launches nuclear weapons, and Milley wanted to make sure he was. If Trump then wanted to launch nukes, against Milley’s advice, well, so it goes. Judging from the Post and CNN accounts (I have not yet received a copy of the book, which is out on Tuesday), Milley was not telling the officers in the war room to insert him into the chain of command; he just wanted to make sure he was briefed.

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This is not what Schlesinger and Brown did in 1974. Schlesinger told Brown to call him if he received any unusual orders from Nixon. Brown then told all the four-star officers in charge of the various military commands (including Strategic Air Command, which then had control of nuclear weapons) that they were not to carry out any “execute orders” from the president unless Brown and Schlesinger first verified the orders.

Now that was an act of genuine insubordination—though patriotic and thoroughly justified insubordination, under the circumstances. Milley, though acting in an unusually bold way for a JCS chairman, simply wanted to make sure the protocols were followed; he wasn’t talking subversion.

The other scoop from Woodward and Costa’s book is stranger. Around the same time that he assembled the nuclear officers, fearful that Trump was “crazy” and might launch an attack against China, Milley phoned his Chinese counterpart, Gen. Li Zuocheng, on a secret back channel to give him two assurances. First, despite the attempted insurrection, America is “100 percent steady,” “everything’s fine,” Milley reportedly said. Second, he told Li, we’re not going to attack you, but if we do, “I’m going to call you ahead of time. It’s not going to be a surprise.”

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If this is true, it’s astonishing. I have never heard or read anything like it in the history of U.S. civil-military relations. It would mean Milley stepped out of the chain of command, obstructed what he saw (correctly or not) as the commander in chief’s policies and intentions, and promised to give the enemy’s top general warning of an impending attack (if the president ordered one), thus denying us the advantage of surprise.

Let’s leave aside, for a moment, the question of whether Milley was right to oppose a surprise attack on China. Do we want the nation’s highest-ranking military officer opposing or circumventing an attack in the way that Milley supposedly did? It would have been better, for democracy and for the chain of command, if Milley had organized a group opposed to attack from within the Defense Department’s civilian directorates, the State Department, the intelligence community, and so forth.

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However, Woodward and Costa’s account—or at least the Post’s summary of it—may be incomplete.* On Wednesday, Jonathan Swan reported in Axios that the back channel with China was opened not by Milley but rather by Secretary of Defense Mark Esper—a more constitutionally proper arrangement. Esper’s intent was simply to assure the Chinese—whose intelligence agencies were warning of an imminent U.S. attack—that an attack was not in the works. Washington Post columnist Josh Rogin cited senior Defense Department officials confirming this was the case. Swan also characterized Milley’s conversation with Li a bit differently from Woodward and Costa. According to a source who is “familiar” with those conversations, Milley said “something to the effect of: ‘We’ll both know if we’re going to war … there’s not gonna be some surprise attack, and there’s no reason for you to do a preemptive strike.’ ” That’s a lot less bizarre than a promise to give China a heads-up on a surprise attack. Swan’s account, if true, is completely normal.

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Finally, Fox News national security correspondent Jennifer Griffin tweeted on Wednesday that 15 officials, including a State Department representative, were in on the video teleconference of Milley’s two calls with Li—and that the read-out notes from those calls were shared with the intelligence community and with an interagency group. This account raises a larger issue, and it’s the issue that Woodward’s last few books have at least implicitly raised: How much power should a president have?

If more than a dozen officials heard Milley acknowledge Li’s concerns about a possible U.S. attack on China, does that mean at least some of those officials believed, as did Milley, that Trump was careening out of control and might attack China in order to hang on to power? If so, the 25th Amendment should have been invoked—or at least seriously considered. The fact that it wasn’t, that officials carried on as usual, is itself concerning.

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In 2017, the Senate Foreign Relations Committee, then controlled by Republicans, held a hearing on launch control of nuclear weapons. It was the first congressional hearing on the issue since 1976. The context, as Democratic Sen. Chris Murphy put it, was a concern that President Trump “is so unstable, is so volatile, has a decision-making process that is so quixotic, that he might order a nuclear weapons strike that is wildly out of step with U.S. national security interests.” No Republican on the panel disputed this assessment.

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Which leads to the big issue. The procedure for launching nuclear weapons—giving sole and unilateral authority to the president—is tacitly based on the premise that the president is sane. This premise is inconsistent with the entire framework of the Constitution. The founders created three branches of the federal government, giving each some degree of veto power over the others, precisely because they feared that, someday in the future, a tyrant might be elected president.

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It may be a lapse that this prudent pessimism did not influence the drafting—or at least the subsequent interpretations—of the Constitution’s Article II, Section 2, which empowered the president as the military’s commander in chief. Had nuclear weapons existed at the time, the founders might have qualified the president’s powers (they did, after all, give Congress the power to declare and fund wars). But they didn’t. And in the 76 years since the atomic age began, no one has attempted to reconcile the president’s absolute power to blow up the planet with the founders’ inclination to block all other sorts of absolute power.

The two hearings on the subject of nuclear control—the first in the wake of Nixon’s turbulent reign, the second near the beginning of Trump’s—explicitly acknowledged the problem and the danger but did nothing about it. Whatever happened at Milley’s meeting in the war room and in his phone calls with Li, it’s time to untangle this deadly dilemma, before the next tyrant comes to power.

Update, Sept. 16, 2021: The Washington Post article distorts what Woodward and Costa write about Milley’s phone call with Li. Their book characterizes the phone call the same way as Swan’s source in Axios.

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