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What if the president gives an order to do something improper or illegal?

David Ignatius on

WASHINGTON -- If President Trump ordered a senior government official to support the firing of special counsel Robert Mueller, how should that person respond?

Adm. Mike Rogers, head of the National Security Agency, answered my question about that onstage last week at the Aspen Security Forum. He began with the usual caveat that he wouldn't answer a hypothetical, but then offered a comment that brought spontaneous applause:

"I will not violate the oath I have taken in my 36 years as a commissioned officer." He said he regularly reminds NSA employees to recall their own oaths and ask themselves: "Why are we here? What are we about? What is it that we are defending? ... I won't sacrifice that for anyone."

In Trump's Washington, it's a fact of life that officials must now weigh whether they would follow presidential orders that might be improper or illegal. Officials mull (and occasionally, discuss quietly) what to do if a presidential request for loyalty conflicts with their sense of right and wrong.

A possible order to fire Mueller is an imminent concern, but there are other tests of loyalty and conscience that could arise with this impulsive, policy-by-Twitter chief executive.

Take Trump's proclamation Wednesday that transgender people shouldn't serve in the military. This apparently caught the Pentagon by surprise and contradicted a wait-and-see statement by Defense Secretary James Mattis. How should he and his generals respond to the president's edict?

Mattis and his commanders must also ponder how they would react to an impulsive order to conduct military action somewhere. Can they say no to the commander in chief?

Presidential orders cannot ordinarily be ignored or dismissed. Our system gives the commander in chief extraordinary power. Jack Goldsmith, a Harvard law professor and former assistant attorney general, explains in an email: "A subordinate in the executive branch has a presumptive duty to carry out the command of the president. If one doesn't want to for any reason, one can resign -- or refuse the order and face a strong likelihood of being fired."

For a military officer, the standard is even tougher. Soldiers must obey orders unless they're unlawful. Under our system of civilian control, if the president issues an order (as on transgender soldiers), the military's default response is to carry it out. Courts may find the presidential order to have been unconstitutional, but the military cannot make its own policy or law.

How should Congress and Justice Department officials weigh their choices as Trump threatens openly to fire Attorney General Jeff Sessions, presumably to clear the way for firing Mueller? It's useful to think about the unthinkable -- as a way of surfacing, and hopefully preventing, abuse of power.

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