Milley Should Be Investigated and Possibly Removed

Milley Should Be Investigated and Possibly Removed

Joint Chiefs of Staff Chairman Army General Mark Milley at a news briefing at the Pentagon in Arlington, Va. August 18, 2021
(Yuri Gripas/Reuters)

At the very least, we must stop the corrosive politicization of institutions that we need to keep nonpolitical — including the military.

I agree with our editorial that General Mark Milley should be aggressively investigated and, if the Washington Post reporting is verified, removed from office. In fact, I think he ought to be pressed, as a preliminary matter, about whether the reporting is substantially accurate; if he concedes that it is, he should be suspended immediately pending an investigation.

But we need a real investigation. I carry no brief for Milley, who personifies the politicization of institutions that must be apolitical in a properly functioning republic. Nevertheless, conclusions about his alleged behavior have gotten way out in front of the evidence.

As our editorial notes, Bob Woodward has a dubious history. As a foundation for admissible evidence, his reporting methods — particularly, encouraging sources to speak without attribution — would be laughed out of a courtroom.

To be sure, the Woodward MO of portraying the most voluble leakers as his story’s most valuable players would strongly suggest that Milley is one of his main sources. On this occasion, that would add credibility to Woodward’s account, on the legal theory of declarations against interest. That is, in touting himself as the commander who bravely reined in an unhinged commander in chief, Milley would have (however inadvertently) admitted misconduct that could subject him to discipline. (Statements against interest, though hearsay, are generally admissible in court because they are presumptively reliable: When people acknowledge actions that put them at risk, they are usually not lying.)

So, I’m entirely open to believing that the fashionably woke general is a chatty mainstream-media source, particularly as to Trump, whom they mutually loathe. But call me old-fashioned: I think we ought to get some relevant players under oath before we oust the chairman of the Joint Chiefs of Staff on the strength of a hearsay story based on unattributed sources along with what is said to be a transcript of a phone conversation between Milley and House speaker Nancy Pelosi that Woodward and his co-author, Robert Costa, claim to have seen but do not produce.

Let’s assume that the report is accurate, as I am prepared to believe if credible evidence is adduced. What should happen? Well, obviously, Milley should be fired, as our editorial contends.

To my mind, this would be the Jim Comey situation all over again, in which the FBI director was removed for ignoring his chain of command and usurping the power of other officials. Milley’s offense would be worse because it would have undermined the bedrock American constitutional principle of military subordination to the elected civilian government.

Three specious suggestions being made in the commentariat, particularly by Trump apologists, should be dismissed.

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.

Second, the Mike Flynn comparison is apt, but the lesson to be drawn is not that it’s payback time. It is that the pursuit of Flynn by the Obama administration — particularly, the FBI — was egregious. Flynn’s contacts with the Russian ambassador when he was a Trump transition official and the incoming national-security adviser were proper. There was, as I argued many times, no basis for a criminal or counterintelligence investigation (the latter on the ludicrous suspicion that the decorated combat commander might be a clandestine agent of the Kremlin). That, however, means that action should not have been taken against Flynn. It does not mean that the Flynn misadventure sets a new (and impossible) standard by which others, such as Milley, should be judged.

Third, you are smoking something if you won’t acknowledge that there were grounds to be deeply worried about President Trump’s stability in the run-up to and during the Capitol riot. As I’ve explained, Trump did not commit the criminal offense of incitement, nor did he conspire to commit the crime of insurrection. He did, however, conduct a frivolous legal and political campaign to reverse his election loss; encourage throngs of his supporters to descend on the Capitol to stoke political pressure on congressional Republicans and Vice President Pence to violate their constitutional duty to count state-certified electoral votes; and deliver an incendiary speech that, while not crossing the line into criminal incitement, was utterly irresponsible. Then, as the foreseeable riot ensued, he took no action to discourage his supporters or, as commander in chief, to protect the seat of government from a forcible uprising.

The main reason Trump was not impeached and removed (besides the Democrats’ writing of a deeply flawed and politicized impeachment article) was that his departure from office was imminent, which fact raised a significant constitutional question about whether impeachment and removal could be applied to a nonincumbent.

The Trump administration did many good things, but the president’s personal history was that he would routinely say and do crazy things that would be ignored or repaired by his top officials — such that he didn’t actually end up firing the special counsel, careening us into a war or an alliance with “Little Rocket Man,” inviting the Taliban to Camp David, ordering the Justice Department to arrest his political rivals and to allege that the election had been stolen by fraud, and so on. An array of Trump officials saved him from himself any number of times. Trump supporters ought to be grateful for these actions because the administration would be remembered very differently if they hadn’t. That said, any one of these actions could have been portrayed as insubordination at the time it happened.

Milley is thus hardly the only top official appointed by Trump to take unusual precautions out of concern that the president’s abnormal behavior could have destabilizing consequences. That is a mitigating factor. Still, the general’s situation is different in salient respects.

Trump did not order Milley to do anything reckless with respect to China. Milley took it on himself to take action, not only outside the chain of command, not only outside our government, but with the often provocative military of a despicable regime, and in a manner that signaled concerns about his top superior — the commander in chief. Further, he made commitments to that regime (about notifying China in advance of any attack Trump might order) that it was not his place to make. If a general is given an order by a superior that he disagrees with, his option, like that of any other inferior officer, is to try to convince his superior to change course, to follow the order, or to resign. Undermining the order in collusion with a rival government — and doing it by, in effect, disclosing highly classified information — is never an option.

If the account of his conversation with Pelosi is true, Milley was also insubordinate in that instance, though not seriously so. The military is supposed to stay out of politics, and it was not his place to discuss his perception of the fitness of his executive-branch superior with the House speaker. Personally, I find Pelosi more at fault for putting Milley in a difficult position, and I don’t see much problem with Milley’s having assured Pelosi that there were “a lot of checks in the system” to prevent the unjustified ordering of a nuclear attack — which Pelosi claimed to be worried about, even if there was no inkling that Trump had any thought of ordering one. If, as Woodward and Costa report, Pelosi and Milley mutually expressed that Trump was “crazy,” then they were among millions of exasperated Americans who were saying such things two days after the Capitol riot, particularly after the president’s tweet regarding the siege (“These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long”).

The inexcusable conduct was Milley’s discussions with his counterpart in the Chinese armed forces. As our editorial observes, Milley had plenty of lawful and appropriate ways to deal with any concerns he had through his chain of command. It was his constitutional obligation to defer to civilian control of the government, foreign policy, and the military.

Recall that FBI director Comey was terminated for violating Justice Department and Bureau rules about public comment on investigations and evidence against uncharged persons (in that case, Hillary Clinton), and for flouting his chain of command. If he really believed his ultimate superior, the attorney general, was unfit to exercise prosecutorial discretion, his option was to alert his immediate superior, the deputy attorney general; he had no authority to take matters into his own hands and make a prosecutorial judgment that it was not the FBI’s place to make. The issue, moreover, was not whether Comey believed in good faith that his ends were noble; it was that the means he used were indefensible and would set a dangerous precedent if not condemned, as they were in both a DOJ memo explaining his firing and in a later DOJ inspector-general report. (That President Trump had other reasons for firing him is irrelevant for present purposes.)

General Milley’s offense is worse than Director Comey’s, and thus, if Woodward’s story is true, he has to go. Sadly, I do not expect President Biden to remove him. Biden has shown himself to be personally lawless and a big part of the problem, rather than the solution, when it comes to the corrosive politicization of institutions that we need to keep nonpolitical, including the military.

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[By: Andrew C. McCarthy

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