President Trump’s refusal to commit to accepting the results of the November election, paired with his penchant for plunging the military into the partisan fray, has prompted scholars and legal experts to ask a once-unthinkable question: How would the armed forces respond if pulled into a disputed election?
“If the president is willing to thrust the military leadership into so damaging a set of circumstances during the protests, just imagine what he would be willing to do if he wants to prevent an electoral outcome that would be damaging to him,” said Kori Schake, director of foreign and defense policy studies at the American Enterprise Institute. “So yes, they should be absolutely worried about it.”
As the election approaches, the president has once again declined to say he would accept its results. “I have to see,” he said during a Fox News interview this month. “I’m not going to just say yes. I’m not going to say no. And I didn’t last time either.”
The president has warned for months that mail-in voting — expected to be used more widely than ever due to the coronavirus pandemic — or potential foreign interference in Democrats’ favor could yield widespread fraud and a “rigged” election, comments his critics worry are laying the groundwork in case he decides to dispute the result. The remarks take on new meaning as former vice president Joe Biden, his presumptive Democratic challenger, assumes a commanding lead in polls.
Scholars cautioned that they are not suggesting that the military would proactively seek to influence the vote, but rather that Pentagon leaders could be forced in a disputed election to become involved in a way that would appear partisan, similar to what occurred in the nation’s capital in the wake of protests in June.
History suggests military involvement is unlikely, experts say. But since the first days of Trump’s presidency, when he used the Pentagon’s Hall of Heroes to sign a ban on travel from majority-Muslim nations, the president has repeatedly defied civil-military norms, treating troop events like campaign rallies and intervening in military justice cases.
Most problematic for defenders of a nonpartisan military were the events of early June, in which Defense Secretary Mark T. Esper and Gen. Mark Milley, chairman of the Joint Chiefs of Staff, faced a tidal wave of criticism after they appeared to be acting in support of Trump’s politically charged response to civil unrest.
Both men later distanced themselves from the White House response and disavowed the use of active-duty military troops against protesters.
Presidential historian Michael Beschloss described Milley’s apology for appearing alongside Trump at Lafayette Square near the White House, after authorities forcibly removed protesters so the president could take a photo in front of St. John’s Episcopal Church with a Bible, as an important milestone in American history. The events served as a cautionary tale for Pentagon leaders about the risks of military action on U.S. soil that could be seen as partisan.
“I think if the chairman of the Joint Chiefs ever had any thought of cooperating with a president who challenged the result — and I think there was never any thought of doing that — Lafayette Square made a lot of people in the military think about this question and resolve it in their minds,” Beschloss said.
Although Trump did not follow through with threats to invoke the Insurrection Act and use the active-duty military against protesters, active-duty troops were dispatched to the outskirts of the nation’s capital. The appearance of National Guard troops on the streets of D.C. as part of the federal response heightened concerns about whether the Pentagon was allowing itself to be used for political ends. Trump has also deployed active-duty troops to the southwest border and diverted Pentagon funds for his border wall project.
“First there’s a president who seems totally willing and eager to utilize instruments of national power in pursuit of his reelection and, second, a president who’s willing or indeed eager to utilize the military on domestic soil,” said Joshua Geltzer, a former official in the Obama administration who serves as executive director of Georgetown Law’s Institute for Constitutional Advocacy and Protection. “We should be really worried if we see those things coming together.”
Unlike in other countries, there is virtually no precedent for the armed forces to play a role in disputed elections in the United States. But fears about the use of the military have arisen during some presidential transitions.
After the inconclusive election of 1800, leaders of several states began organizing militiamen in a bid to ensure that Thomas Jefferson could assume the presidency over Aaron Burr. In 1974, some worried that President Richard Nixon would try to get elements of the military to help him stay in office, but the concerns were unfounded, and Nixon opted to resign rather than drag the country any further through an impeachment process against him.
The military was also involved indirectly in settling the contested election of 1876 when Democrats agreed to cede the presidency to Republican Rutherford Hayes in exchange for a promise to remove troops from Southern states, where they had been stationed since the end of the Civil War.
In 1934, a retired Marine Corps general, Smedley Butler, testified before Congress that a group of industrialists had conspired to create a fascist veterans group with him at the helm and use the organization to overthrow President Franklin D. Roosevelt in a scandal that became known as the “business plot.”
Legal experts say the three-month period between Election Day on Nov. 3 and Inauguration Day on Jan. 20 should provide a buffer that greatly diminishes the potential for a disorderly transition, no matter who wins the election.
In December 2000, following that year’s contested presidential election, the Supreme Court issued a ruling that decided the race in favor of George W. Bush. Ultimately, however, it was Democratic nominee Al Gore’s decision to concede that ended that crisis rather than the court decision itself.
“We have over two centuries of American history, and every single time the system has resolved this, and there’s no reason to expect that will not happen now,” Beschloss said.
Nevertheless experts said they are most worried about a handful of hypothetical situations, including a scenario in which Trump might refuse to concede victory to Biden, or a legal challenge to the outcome might remain unresolved by Inauguration Day, prompting him to assert presidential authority beyond Jan. 20.
In that scenario, experts hypothesized, the White House might call on the military to protect the president or, more likely, respond to potential protests on “law and order” grounds, possibly leading the president to follow through with earlier threats to send active-duty troops to American cities or take control of state-commanded National Guard members.
Already, his administration has mounted a shock-and-awe response to protests in Portland, Ore., sending in federal agents from the Department of Homeland Security over the objections of local and state officials, in what critics have called a political effort to boost Trump in the polls.
The president also has special powers in the U.S. capital. Because D.C. does not have a governor, he acts as commander in chief of the city’s National Guard force. In June, other states sent their Guard units to augment the D.C. Guard, creating a military force answerable to the president operating on U.S. soil in a law enforcement role.
Crucially, a contested outcome lasting beyond Jan. 20 would force the military to make an implicit decision about who is commander in chief. According to the Presidential Succession Act of 1947, Trump would cease to be president on noon of Jan. 20 if Congress does not certify him as the winner, passing his authority as commander in chief of the military to the acting president, the speaker of the House of Representatives.
“This is where the Constitution’s procedure would matter,” said Stephen Vladeck, a professor and constitutional expert at the University of Texas School of Law.
In another scenario described by Cardozo Law School professor Deborah Pearlstein in a recent essay, the Supreme Court might issue a decision before Inauguration Day, but “some significant (perhaps even violent) fraction of the electorate” might not accept it as legitimate, again raising the possibility of the military being asked to respond to civil unrest.
While Trump’s status as commander in chief would not be in question before Jan. 20, military leaders would face the dilemma of how to respond to an order without compromising the military’s status as a trusted national institution.
“That would be an everyday scenario in terms of the military’s obligation to decide between lawful and unlawful orders,” Vladeck said.
Experts agreed that in the event of a clear court ruling or congressional certification of an electoral winner, the Defense Department would probably comply with those decisions. They also point to laws that would penalize government officials who stayed on and exercised their government powers if they were removed by an incoming president. For the military, such an official could be charged with failing to impede mutiny or sedition.
But experts acknowledged the potential for a more ambiguous situation. They say Pentagon leaders should be reviewing electoral procedure — much of which isn’t familiar to most Americans — because U.S. elections aren’t typically the subject of prolonged dispute.
“In so many ways it looks like the military is going to have to be thinking about its role in domestic politics in ways it normally doesn’t,” said Risa Brooks, a Marquette University professor who studies civil-military relations across countries.
Schake said the events of June forced Pentagon leaders to publicly articulate where they believe the line is between the military and partisan affairs.
“It caused both the civilian and military leaderships in the Pentagon to understand the damage that President Trump’s efforts to align the military with his own behavior will do to the relationship between Americans and our military,” she said.
Despite moments of turmoil in American history, the peaceful transfer of power has proceeded largely unimpeded according to a tradition set by George Washington.
“If you look at history, it’s hard to think of an example where a president has given an order to the military to try to save himself politically and that effort has succeeded. It is not happening,” Beschloss said. “We have a democratic tradition, and we have a process, and even despite these times, those two things remain.”
