Gallons of ink have already been spilled on the pages of America’s newspapers by scholar and lawyers arguing that President Trump does not have all or key elements of the authority he claims to have to deport millions of illegal aliens, strike smugglers of deadly illegal drugs and pursue other key elements of the agenda that got him elected.
Indeed, six former military and intelligence agency officers, and current elected officials, Democrat Sen. Elissa Slotkin, Rep. Chris Deluzio, Rep. Chrissy Houlahan, Sen. Mark Kelly, Congresswoman Maggie Goodlander and Congressman Jason Crow, posted a video urging American service and intelligence agency members to disobey “illegal orders.”
Slotkin, Deluzio, Houlahan, Kelly, Goodlander and Crow made a very general allegation about what illegal orders President Trump may have issued and they did not define or identify what illegal orders they believe President Trump issued, nor did they correctly identify the process for legally refusing an illegal order.
And, for the record it should be noted that many of what Democrats have claimed are “illegal orders” issued by President Trump have been upheld by the Supreme Court – meaning they were in fact legal.
However, that should surprise no one because the “Seditious Six” were completely MIA when Obama and Biden were issuing orders the Supreme Court later found to be illegal.
What no one seems to recognize is that it took people – federal employees, sworn law enforcement agents, and maybe even some military personnel – to accomplish Biden and Obama’s illegal goals: illegally granting amnesty to illegal aliens and illegally “forgiving” billions in student loans, being just two examples.
Someone has to let the illegal aliens out of jail, issue the documents, mail the green cards and do all the hundreds of other tasks necessary to carry out Biden and Obama’s illegal and unconstitutional schemes. And each of those individuals took an oath to protect and defend the Constitution of the United States, not blindly follow a president’s orders.
There’s ample evidence that federal employees, sworn law enforcement agents and military officers can not only refuse an illegal order, but if they don’t they accrue personal criminal or civil liability.
So, where were Slotkin, Deluzio, Houlahan, Kelly, Goodlander and Crow, when all that was going on?
Silent as church mice.
Military orders given by a superior are presumed to be lawful. However, it is also true that American military law and tradition holds that military members are accountable for their actions even while following orders -- if the order was illegal. So, an order that is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it.
U.S. military law has long held that following manifestly illegal orders is not a viable defense from criminal prosecution. In United States v. Keenan, the accused (Keenan) was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal." (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).*
So, U.S. military personnel are authorized by their oath of enlistment and training to refuse unlawful orders, indeed, officers are actually authorized to arrest those who issue unlawful orders.
Likewise, various agencies of the federal government have rules and regulations regarding illegal orders. Such rules tend to follow a formula such as this from a USDA ethics briefing; “USDA Employees must follow supervisory instructions unless the employee perceives that they are illegal or would threaten his or her personal safety. Supervisory instructions have to be legitimate and work-related not arbitrary or capricious.”
Naturally, federal employees who refuse to carry out orders believing they will result in such a violation usually will not be praised by an agency for their righteousness. Instead, they will be branded as being insubordinate, which is exactly what happened to FBI whistleblowers and other federal employees who objected to Biden and Obama’s illegal orders.
Employees caught in this ordered-to-do-wrong bind are generally advised adhere to what the Merit Systems Protection Board (MSPB) has dubbed the “obey now, grieve later” rule. Under this rule, employees should carry out whatever they were ordered to do, and then blow the whistle on the wrongdoing. They could, for example, disclose information about the violation to the Office of Special Counsel (OSC) or Office of the Inspector General (OIG).
An exception to this rule applies to “certain limited circumstances where obedience would place the employee in a clearly dangerous situation, or when complying with the order would cause him irreparable harm.”** Federal employees concerned that they’ve been told to do something criminally illegal or who have been subjected to retaliation for blowing the whistle on wrongdoing may have certain legal protections and should immediately contact a federal employment law attorney, says Mathew B. Tully of Tully Rinckey, PLC.
We apparently missed Slotkin, Deluzio, Houlahan, Kelly, Goodlander and Crow criticizing the “obey now, grieve later” dictum that resulted in compliance with the orders that facilitated Obama’s unlawful executive amnesty and Biden’s unlawful student loan forgiveness schemes.
The Supreme Court held in Marbury v. Madison, that an act passed as law in obvious violation of the U.S. Constitution is not a law, but void.
In the now quaint sounding words of Justice Marshall, “the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument [the Constitution].”
Meaning that an “executive order,” which has less status than a statue passed by Congress, that is in obvious violation of the U.S. Constitution is not law, but void, and therefore not a lawful order requiring compliance by any federal employee, military officer or sworn law enforcement agent.
Strangely, back during the Obama years liberal and progressive legal scholars and commentators took an entirely different view of the responsibilities of federal employees and service members.
In a 2012 post to their website the American Immigration Lawyers Association (AILA) wrote, “The last I checked federal bureaucrats are supposed to implement the administration’s policies, not publicly obstruct them.” And later in the same piece, “Since when does the soldier tell the general what to do?”
Chris Crane, president of the National ICE Council told the media on numerous occasions that Immigration and Customs Enforcement officers faced retaliation if they fulfilled their clear responsibilities under the law and disobeyed Obama’s illegal amnesty order. One officer was threatened with a three-day suspension and could ultimately lose his job and pension if he arrests another illegal not on the Obama administration’s priority list.
Interestingly enough, back in 2012 another group stepped forward to offer support and encouragement to federal employees, sworn law enforcement officers and military personnel who might find themselves in the ethical and constitutional dilemma of being given an illegal order: Oath Keepers, a non-partisan association of current and formerly serving military, reserves, National Guard, veterans, Peace Officers, and Fire Fighters gave similar advice.
Stewart Rhodes, Founder and President of Oath Keepers, issued a statement after President Obama’s amnesty announcement, “If we don’t have rule of law that applies to the government, under the Constitution as the Supreme Law of the Land, then we have a dictatorship, and We the People are absolved of any obligation or obedience to such usurpers and oath-breakers.”
After January 6, 2021, for acting upon his understanding of the law, Mr. Rhodes was sentenced to 18 years in prison for seditious conspiracy and a second Oath Keepers member, Kelly Meggs, the leader of the Florida contingent of the group, was sentenced to 12 years in prison.
None of the Seditious Six seemed to have a problem with that, and Democrats complained bitterly when President Trump pardoned Rhodes and Meggs.
“This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. Right now, the threats coming to our Constitution aren’t just coming from abroad but from right here at home. Our laws are clear. You can refuse illegal orders. You must refuse illegal orders,” the Seditious Six claimed. “No one has to carry out orders that violate the law or our Constitution.”
The claim the President is “pitting our uniformed military and intelligence community professionals against American citizens” sounds to us like they are charging that President Trump has violated the Posse Comitatus Act.
Absent proof from Slotkin, Deluzio, Houlahan, Kelly, Goodlander and Crow that President Trump ordered such a violation, this looks a lot like a conspiracy that is directly and palpably intended to be prejudicial to good order and discipline in the armed forces. The perpetrators who are former military should be brought before the appropriate authorities to answer charges under Article 134 of the Uniform Code of Military Justice (UCMJ), and Article 92 of the UCMJ, for their actions. Moreover, going by the J6 precedent, all of them should be charged with seditious conspiracy for inciting personnel of the military and intelligence agencies to engage in rebellion against the government of the United States.
George Rasley is editor of Richard Viguerie's ConservativeHQ.com and is a veteran of over 300 political campaigns. A member of American MENSA, he served on the staff of Vice President Dan Quayle, as Director of Policy and Communication for former Congressman Adam Putnam (FL-12) then Vice Chairman of the Oversight and Government Reform Committee's Subcommittee on National Security and Foreign Affairs, and as spokesman for retired Rep. Mac Thornberry formerly a member of the House Intelligence Committee and Chairman of the House Armed Services Committee.
*Hat tip to author and retired USAF First Sargent Rod Powers, author of Barrons' Officer Candidate School Tests and many other books and articles on military life.
**Hat tip to Mathew B. Tully of Tully Rinckey PLLC, an Arlington, VA firm that specializes in federal employment and labor law, security clearance proceedings, and military law.
Indeed, six former military and intelligence agency officers, and current elected officials, Democrat Sen. Elissa Slotkin, Rep. Chris Deluzio, Rep. Chrissy Houlahan, Sen. Mark Kelly, Congresswoman Maggie Goodlander and Congressman Jason Crow, posted a video urging American service and intelligence agency members to disobey “illegal orders.”
Slotkin, Deluzio, Houlahan, Kelly, Goodlander and Crow made a very general allegation about what illegal orders President Trump may have issued and they did not define or identify what illegal orders they believe President Trump issued, nor did they correctly identify the process for legally refusing an illegal order.
And, for the record it should be noted that many of what Democrats have claimed are “illegal orders” issued by President Trump have been upheld by the Supreme Court – meaning they were in fact legal.
However, that should surprise no one because the “Seditious Six” were completely MIA when Obama and Biden were issuing orders the Supreme Court later found to be illegal.
What no one seems to recognize is that it took people – federal employees, sworn law enforcement agents, and maybe even some military personnel – to accomplish Biden and Obama’s illegal goals: illegally granting amnesty to illegal aliens and illegally “forgiving” billions in student loans, being just two examples.
Someone has to let the illegal aliens out of jail, issue the documents, mail the green cards and do all the hundreds of other tasks necessary to carry out Biden and Obama’s illegal and unconstitutional schemes. And each of those individuals took an oath to protect and defend the Constitution of the United States, not blindly follow a president’s orders.
There’s ample evidence that federal employees, sworn law enforcement agents and military officers can not only refuse an illegal order, but if they don’t they accrue personal criminal or civil liability.
So, where were Slotkin, Deluzio, Houlahan, Kelly, Goodlander and Crow, when all that was going on?
Silent as church mice.
Military orders given by a superior are presumed to be lawful. However, it is also true that American military law and tradition holds that military members are accountable for their actions even while following orders -- if the order was illegal. So, an order that is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it.
U.S. military law has long held that following manifestly illegal orders is not a viable defense from criminal prosecution. In United States v. Keenan, the accused (Keenan) was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal." (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).*
So, U.S. military personnel are authorized by their oath of enlistment and training to refuse unlawful orders, indeed, officers are actually authorized to arrest those who issue unlawful orders.
Likewise, various agencies of the federal government have rules and regulations regarding illegal orders. Such rules tend to follow a formula such as this from a USDA ethics briefing; “USDA Employees must follow supervisory instructions unless the employee perceives that they are illegal or would threaten his or her personal safety. Supervisory instructions have to be legitimate and work-related not arbitrary or capricious.”
Naturally, federal employees who refuse to carry out orders believing they will result in such a violation usually will not be praised by an agency for their righteousness. Instead, they will be branded as being insubordinate, which is exactly what happened to FBI whistleblowers and other federal employees who objected to Biden and Obama’s illegal orders.
Employees caught in this ordered-to-do-wrong bind are generally advised adhere to what the Merit Systems Protection Board (MSPB) has dubbed the “obey now, grieve later” rule. Under this rule, employees should carry out whatever they were ordered to do, and then blow the whistle on the wrongdoing. They could, for example, disclose information about the violation to the Office of Special Counsel (OSC) or Office of the Inspector General (OIG).
An exception to this rule applies to “certain limited circumstances where obedience would place the employee in a clearly dangerous situation, or when complying with the order would cause him irreparable harm.”** Federal employees concerned that they’ve been told to do something criminally illegal or who have been subjected to retaliation for blowing the whistle on wrongdoing may have certain legal protections and should immediately contact a federal employment law attorney, says Mathew B. Tully of Tully Rinckey, PLC.
We apparently missed Slotkin, Deluzio, Houlahan, Kelly, Goodlander and Crow criticizing the “obey now, grieve later” dictum that resulted in compliance with the orders that facilitated Obama’s unlawful executive amnesty and Biden’s unlawful student loan forgiveness schemes.
The Supreme Court held in Marbury v. Madison, that an act passed as law in obvious violation of the U.S. Constitution is not a law, but void.
In the now quaint sounding words of Justice Marshall, “the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument [the Constitution].”
Meaning that an “executive order,” which has less status than a statue passed by Congress, that is in obvious violation of the U.S. Constitution is not law, but void, and therefore not a lawful order requiring compliance by any federal employee, military officer or sworn law enforcement agent.
Strangely, back during the Obama years liberal and progressive legal scholars and commentators took an entirely different view of the responsibilities of federal employees and service members.
In a 2012 post to their website the American Immigration Lawyers Association (AILA) wrote, “The last I checked federal bureaucrats are supposed to implement the administration’s policies, not publicly obstruct them.” And later in the same piece, “Since when does the soldier tell the general what to do?”
Chris Crane, president of the National ICE Council told the media on numerous occasions that Immigration and Customs Enforcement officers faced retaliation if they fulfilled their clear responsibilities under the law and disobeyed Obama’s illegal amnesty order. One officer was threatened with a three-day suspension and could ultimately lose his job and pension if he arrests another illegal not on the Obama administration’s priority list.
Interestingly enough, back in 2012 another group stepped forward to offer support and encouragement to federal employees, sworn law enforcement officers and military personnel who might find themselves in the ethical and constitutional dilemma of being given an illegal order: Oath Keepers, a non-partisan association of current and formerly serving military, reserves, National Guard, veterans, Peace Officers, and Fire Fighters gave similar advice.
Stewart Rhodes, Founder and President of Oath Keepers, issued a statement after President Obama’s amnesty announcement, “If we don’t have rule of law that applies to the government, under the Constitution as the Supreme Law of the Land, then we have a dictatorship, and We the People are absolved of any obligation or obedience to such usurpers and oath-breakers.”
After January 6, 2021, for acting upon his understanding of the law, Mr. Rhodes was sentenced to 18 years in prison for seditious conspiracy and a second Oath Keepers member, Kelly Meggs, the leader of the Florida contingent of the group, was sentenced to 12 years in prison.
None of the Seditious Six seemed to have a problem with that, and Democrats complained bitterly when President Trump pardoned Rhodes and Meggs.
“This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. Right now, the threats coming to our Constitution aren’t just coming from abroad but from right here at home. Our laws are clear. You can refuse illegal orders. You must refuse illegal orders,” the Seditious Six claimed. “No one has to carry out orders that violate the law or our Constitution.”
The claim the President is “pitting our uniformed military and intelligence community professionals against American citizens” sounds to us like they are charging that President Trump has violated the Posse Comitatus Act.
Absent proof from Slotkin, Deluzio, Houlahan, Kelly, Goodlander and Crow that President Trump ordered such a violation, this looks a lot like a conspiracy that is directly and palpably intended to be prejudicial to good order and discipline in the armed forces. The perpetrators who are former military should be brought before the appropriate authorities to answer charges under Article 134 of the Uniform Code of Military Justice (UCMJ), and Article 92 of the UCMJ, for their actions. Moreover, going by the J6 precedent, all of them should be charged with seditious conspiracy for inciting personnel of the military and intelligence agencies to engage in rebellion against the government of the United States.
George Rasley is editor of Richard Viguerie's ConservativeHQ.com and is a veteran of over 300 political campaigns. A member of American MENSA, he served on the staff of Vice President Dan Quayle, as Director of Policy and Communication for former Congressman Adam Putnam (FL-12) then Vice Chairman of the Oversight and Government Reform Committee's Subcommittee on National Security and Foreign Affairs, and as spokesman for retired Rep. Mac Thornberry formerly a member of the House Intelligence Committee and Chairman of the House Armed Services Committee.
*Hat tip to author and retired USAF First Sargent Rod Powers, author of Barrons' Officer Candidate School Tests and many other books and articles on military life.
**Hat tip to Mathew B. Tully of Tully Rinckey PLLC, an Arlington, VA firm that specializes in federal employment and labor law, security clearance proceedings, and military law.
