Extraordinary response to Trump’s tweet about transgenders in the military

Jake Winograd
Jul 28, 2017 · 5 min read

Overshadowed by the ACA repeal drama was the U.S. military’s response to Cheetolini’s *official statement* via Twitter about banning transgender personnel from the military. As usual, Seth Abramson provided insightful legal analysis of the situation. His commentary, condensed and lightly edited, is below. The original thread is at https://twitter.com/SethAbramson/status/890618530600636416.

The recent response of the U.S. military to a clear directive from its Commander-in-Chief was extraordinary. We need to discuss it.

The White House has stated publicly, unambiguously, and repeatedly that President Trump’s tweets are official White House declarations. The U.S. military is as or more aware of this White House policy as anyone else is, as it’s obligated to follow presidential directives. There’s long been concern, not merely from pundits, but attorneys and policy-makers, about the effect of the President’s manic tweeting. A chief concern has been, and remains, just how difficult it is to determine when and how the President’s tweets have the force of law. I have spent *months* urging the President to curtail his tweeting for *legal* reasons, with only bemusement from the media in response. But now what I and every other attorney could have predicted — President Trump using Twitter to *issue a presidential order* — has happened. Because the media never took Trump’s tweeting seriously *as a legal issue,* it is now soft-shoeing the fact that we’re at a crisis point.

POTUS has several times used his Twitter to commit crimes, like Obstruction and Witness Tampering. I get why some don’t want him to stop. The President’s detractors want him to continue creating evidence against himself in a federal criminal investigation via tweets. Okay. But what we can’t do is pretend that the President’s official declaration banning transgendered soldiers from the military was unclear. The President’s tweet — an order — was *crystal* clear. As Commander-in-Chief, he established a new zero-tolerance policy for the military. What remained unclear post-order *wasn’t* the policy *or* that it was effective immediately, but *how* the military would implement it. (I’m putting aside for a moment that the order was *ethically odious and profoundly immoral*. I’m simply offering a legal analysis here.) After receiving this order, was the military authorized to offer any public response other than, “Yes sir, we’ll do this, tell us how?” I think not. So we should have a national discussion on whether the military’s response to this order was historically *extraordinary*. We need to have that conversation *now* — before the President issues another illegal, inhumane, or nonsensical direct order via a tweet.

Given what I’ve written here about the chain-of-command as it’s popularly understood by American citizens, read this military response: “General Joe Dunford, Chairman of the Joint Chiefs Of Staff, to the ENTIRE U.S. military: “There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.” Inasmuch as Gen. Dunford recognizes he’s been given “direction” and only speaks of implementation, he added, “In the meantime, we will continue to treat all of our personnel with respect. As importantly, given the current fight and the challenges we face, we will all remain focused on accomplishing our assigned missions.”

In many respects, that’s all normal. But Gen. Dunford did *not* confirm that the U.S. military planned to execute the directive upon receiving implementation instructions. To be clear, the military did *not* refuse orders; it simply (a) gave no public indication that it was accepting them, and (b) gave the clear impression it believed the orders it had been given constituted a “disrespect” of its personnel by the Commander-in-Chief. It gave the clear impression — which not a *single* journalist missed — that it believes it must protect its personnel from its Commander.

If there is ever a historically extraordinary crack between civilian command and the U.S. military, it will *not* happen all at once. But we *do* know, from other nations, what would *cause* it: manic orders, given without military consultation, that endanger soldiers. If this President continues to issue manic, middle-of-the-night declarations that have the full force of law, our military WILL resist. That resistance will, at first, take the form we’ve now seen: pretending clear orders aren’t clear and/or using procedural excuses for a delay. The military will send, as it now has, not-so-subtle signs to the American public that it strongly objects to the orders it’s received. Public reporting, as has happened here, will leave the American public confused about which orders are “official” and will be followed.

Gen. Dunford, a *good man*, was just in Aspen discussing the fact that Americans should be *very* concerned about a Second Korean War. He said that while the U.S. military would *win* any such confrontation, the loss of life would be like nothing we’ve seen since WWII. Under these circumstances, even the smallest hiccup in the chain of command could have disastrous effects for American soldiers abroad. The military’s response to Trump’s tweeted (but official) directive is the CANARY IN THE COAL MINE, warning of far bigger dangers ahead.

This president must *immediately* cease *tweeting* official directives or issuing military policy without consulting with the military. He’s now proven to us that he’s willing to give orders that endanger our soldiers without giving anyone in the military advance notice. He has proven to us that his manner of communicating presidential directives causes mass confusion among both the media and the public. Now transfer the knowledge we’ve now gained about the President to a THEATER OF WAR, in which snap decisions cost thousands their lives. Right now, our media is treating Trump’s tweeting as *humorous* and this military order as maybe our *tenth*-most important news story. I’m telling YOU that a mentally unstable civilian commander issuing midnight military orders that endanger U.S. solders is INSANE.

Moreover, I’m telling you that it’s perfectly clear that the military considers it insane and is breaching its protocols to resist. As Trump’s mental health deteriorates, due to the ongoing Russia probe, his relationship with our military will grow *more* precarious. We can use POTUS’ order on transgendered soldiers as an opportunity to talk about “tweeted orders” and *military consultation* — or not. So, we must not normalize *either* the President’s behavior *or* the U.S. military’s unusual response to a clear presidential directive. All legal mechanisms available must be brought to bear in getting POTUS off Twitter. Its crimes aside, his feed *could* endanger lives. Should the U.S. *ever* be in a war footing during Trump’s presidency, we will *quickly* learn how dangerous his Twitter feed is.

I fully agree with the servicemen noting soldiers can refuse unlawful orders. But when they’re from POTUS, there’s also an *aftermath*. When military personnel refuse an order from a military commander, the aftermath is “in-house.” A civilian commander? Different story. (Mind you, I fully support — and admire! — the military’s response. I’m just saying that this is a more complicated than usual situation.) If a time should ever come that the military refuses a civilian command, it enacts a constitutional rift unlike an “in-house” dispute.

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