Whither General Milley?

A prescription for accountability from General Milley

[Author’s Note: This article has been clarified and revised. Please see the revised version at this link.]

As all readers know by now, during his last hours in office, Joe Biden gave former Chairman of the Joint Chiefs of Staff, General Mark Milley, a “full and unconditional pardon” for any offenses “which he may have committed or taken part in during the period from January 1, 2014, through the date of this pardon, arising from or in any manner related to his service as Chief of Staff of the U.S. Army or Chairman of the Joint Chiefs of Staff.” Milley, like many others who Biden favored with these blanket pardons, had not been convicted or even charged with a crime.

Even though the pardon insulates Milley from being charged with any federal crimes, there is still a way to obtain some accountability from him. As a retired officer, he is subject to recall to active duty at any time. That provides a mechanism for much-needed accountability.

A pardon of innocents?

Biden pardoned Milley along with Saint Fauci and members of the J6 committee on Monday, one day before President Trump’s inauguration. Biden defended these unprecedented preemptive pardons by suggesting that those favored were not guilty of any offense:

The issuance of these pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt for any offense.

For his part, Milley released a statement, making clear that he was delighted to have received this blanket immunity from any federal prosecution. He said that he did “not wish to spend whatever remaining time the Lord grants me fighting those who unjustly might seek retribution for perceived slights. I do not want to put my family, my friends, and those with whom I served through the resulting distraction, expense, and anxiety.”’

Milley is only ‘guilty’ of “perceived slights” you see.

Only “retribution for perceived slights?” Would an investigation of Milley be unjust retribution because he did not engage in any wrongdoing?

Before we consider any possible accountability, it is necessary to consider whether Milley really is totally innocent or if there is good cause to investigate him for criminal acts.

Were Biden and Milley correct when they suggested he was innocent of all violations of the Uniform Code of Military Justice or any other crimes? Was Biden just protecting an innocent man from vindictive political retribution, or was he trying to safeguard Milley and others from any accountability for their actions? There are more examples that should be considered, but let’s look at just two of the allegations that have been made against Milley, then you decide.

(1) Contemptuous words directed against the President

Article 88 of the Uniform Code of Military Justice, titled “Contempt toward officials,” prohibits commissioned officers from using “contemptuous words” against the President or other high government officials. Using mandatory language, it promises that a violation “shall be punished as a court-martial may direct.” The Manual for Courts-Martial provides that the maximum punishment for an Art. 88 violation is “Dismissal, forfeiture of all pay and allowances, and confinement for 1 year.

So, has Milley “use[d] contemptuous words against the President”? The answer is a clear “Yes.” In an interview with Bob Woodward in connection with his book, War, Milley told Woodward that Trump was “a fascist to the core.” This comment was first sprung on the public as a mini-October surprise last year, scant weeks before the election.

“Fascist,” of course, had become one of the left’s favorite adjectives when applied to Trump, so maybe Milley was just joining in the fun. But is there any precedent for charging this as a violation of Art. 88 of the UCMJ? Again, there is a clear answer: “Yes.”

A bit of history: a court-martial for calling the President a fascist

In 1965 Army Second Lieutenant Henry Howe participated (in civilian clothes) in an anti-war demonstration in El Paso Texas. Howe joined the demonstration while carrying a hand-written cardboard sign. One side of the sign said, “LET’S HAVE MORE THAN A ‘CHOICE’ BETWEEN PETTY, IGNORANT FACISTS [sic] IN 1968”; the other side read, “END JOHNSON’S FACIST [sic] AGGRESSION IN VIETNAM.”

Calling President Johnson a fascist (even if it was misspelled) was sufficient to convict Howe of violating Art. 88. He was tried and sentenced to dismissal from the service, forfeiture of all pay and allowances, and two years¹ at hard labor in prison.

If a second lieutenant was sentenced to a year at hard labor for violating Art. 88 by calling the President a fascist, what should have been done with a four-star general who did the same thing? Should his years of service and status entitle him to a pardon, as Biden argued? As I thought about that, I reflected on a sentencing hearing for a convicted felon who previously had been known as a ‘pillar of the community.’ The hearing was before the late Honorable D. Dortch Warriner over 40 years ago. The defense counsel presented a parade of respected political and other community leaders who implored Judge Warriner to impose a light sentence because of the defendant’s prior good standing in the community. Judge Warriner listened to it all and then lowered the boom, imposing a lengthy prison term. His short explanation quoted the Gospel of Saint Luke: “Of those to whom much is given, much will be required.”

Just so.

(2) Milley’s unlawful order to senior officers demanding that they disobey the President

Bob Woodward and his co-author Robert Costa document another troubling incident in their book Peril. It has been widely reported by a variety of sources, but here is their recounting of the incident as described in American Military News.

In the days following the storming of the U.S. Capitol on January 6, Joint Chiefs Chairman Gen. Mark Milley held a top-secret meeting with senior military officials to take action against then Commander-in-chief Donald Trump, blocking the president from potentially launching nuclear weapons and ordering staff to ignore all orders except Milley’s, a new book entitled “Peril” by journalists Bob Woodward and Robert Costa revealed, as reported by CNN on Tuesday.

* * * *

Milley was reportedly concerned the president could “go rogue.”

In the secret meeting, Milley ordered the officials in charge of the National Military Command Center not to take orders from anyone except him.

“No matter what you are told, you do the procedure. You do the process. And I’m part of that procedure,” Milley ordered, according to the book. The general then moved around the room and received verbal confirmation from each person.

“Got it?” Milley asked, the book said. The authors wrote that Milley considered the order “an oath.”

Milley’s order to the unidentified “senior military officials” was an unlawful order. The President and only the President has the authority to order a nuclear strike. He transmits that order through the chain-of-command. Milley is not even in the chain-of-command for launching a nuclear strike. He knew that very well. There was no legal basis for him telling other officers that he had to approve a Presidential order for a nuclear strike. Milley had to know that he was giving an unlawful order, which likely is why he demanded assurances from each person in the room that they “Got it.” Milley has defended his actions by suggesting that Trump wanted to be a dictator but, if Woodward’s and Costa’s book is accurate, Milley thought that he was demanding equivalent of an “oath” from each officer present. An oath to Milley, not to the Constitution. The world has seen that before.

What are we to make of Milley’s order that officers should disobey an order of the President unless it is approved by Milley, an officer outside the chain-of-command? Milley will attempt to justify it on the grounds that Trump might “go rogue” because he was “crazy.” Woodward and Costa also report that Pelosi said to Milley, “He’s crazy. You know he’s crazy. He’s been crazy for a long time. So don’t say you don’t know what his state of mind is.” Milley’s response? “Madam Speaker, I agree with you on everything.”

If Milley really thought that Trump was “crazy,” then to be faithful to his own oath to the Constitution, he had a duty to raise it with a cabinet official for possible action under the 25th Amendment, not to gossip about it with Pelosi and arrogate to himself the authority to override a Presidential order. He didn’t have to look far for a cabinet official. He was in regular communication with Secretary of Defense Lloyd Austin.

Milley’s claims that any investigation or charges against him would be nothing more than “retribution for perceived slights.” Despite that self-serving defense, there are more than enough grounds for an investigation to determine whether Milley was attempting to lay the groundwork for a military coup by unlawfully inserting himself in the chain-of-command and usurping Presidential authority; or whether he and the other “senior military officials” who went along with his unlawful actions or failed to report them (and who have not been pardoned), were guilty of “mutiny or sedition?”²

Can there still be accountability?

Although Milley can no longer be charged for any such crimes, there are still avenues to hold him and others accountable for their actions. Those other “senior military officials” who heard Milley’s unlawful order had a duty under Art. 94(b) to report the mutiny or sedition and a failure to do so, “shall be punished by death or such other punishment as a court-martial may direct.” And no, I am not suggesting that these officers should be “punished by death,” but the fact that death is one of the potential penalties shows how serious this matter is. A failure to investigate these officers could send an undesired but powerful message.

As for Milley himself, according to reports, he welcomed the pardon because he feared being recalled to active duty where he could be court-martialed. Biden’s blanket pardon means that Milley cannot be prosecuted for any violations of the UCMJ or other federal law. But recall to active duty is still an option and might result in some much-needed accountability.

If he cannot be tried by court-martial, if Milley is recalled to active duty what can he do to provide a measure of accountability? And what can he not do that may also provide a smidgen of accountability?

As an officer on active duty, Milley’s ability to cash in from his service would be curtailed. He would still have his hefty retirement pay but would have to forego his lucrative outside money-making gigs. Thus, he could no longer reap the benefits of his lucrative consulting contract as a “Senior Advisor” to JP Morgan Chase. His positions with Georgetown University and Princeton? Down the drain. And his mega-million-dollar windfall from the speaking circuit as a client of The Harry Walker Agency along with the likes of Bill and Hillary Clinton, Al Gore, Mika Brzezinski and Joe Scarborough, Tom Brady and Shaquille O’Neal? Sayonara to all that. Some may think that this would provide at least a small measure of accountability for the damage Milley has inflicted on the military.

What can Milley do to provide some accountability?

Here are some options that Secretary Hegseth could consider, if he orders Milley to be recalled to active duty. First, he could be given an office in, perhaps, Ft. Polk, just outside of Leesville, Louisiana. It need not be on the scale of his prior lavish accommodations in the Pentagon. It only needs to be just large enough to accommodate him and maybe two or three assistants (selected by someone else) to help Milley with research and the identification and retrieval of documents he will need.

He could then be ordered to prepare detained and comprehensive reports on a variety of topics. These reports should be very thorough with the purpose of identifying problems afflicting the military, their root causes, and the necessary solutions. This necessarily would involve extensive interviews of numerous witnesses by independent investigators, and a review of tens of thousands of documents. Just one such report could easily take a year or more. This would be a difficult task, to be sure, but certainly manageable for a 4-star general.

The above two potential UCMJ violations would be topics for a good start. Each report should include a detailed statement of all the facts relating to each, and the identification of anyone involved or with relevant knowledge.

Importantly, Milley should be required to show how those facts fit within the framework of all the possible UCMJ violations. So, even though Milley is immune from potential federal prosecution for these crimes, he would have to document how his actions fit within the framework of specific UCMJ articles. And a failure to do so might be the subject of disciplinary action. And, of course, Milley could still be prosecuted under UCMJ Art. 107,³ if he is not truthful and makes a false official statement.

Many other details would have to be worked out, but you get the idea.

Other possible topics for similar reports include:

• Milley’s promise to his Chinese counterpart, General Li Zuocheng, that he would give him advance warning if the U.S. were about to attack China.

• Military policies and practices that have permitted racial discrimination in promotions, assignments, selection for command, and admissions to service academies.

• DEI practices in the military and at all Service Academies.

• The culture in the service academies that has led to their practice of violating federal law by stonewalling document requests pursuant to the Freedom of Information Act.

Readers can add their own suggested topics in the comments.

There is a great deal of work to be done to rid the military of the poisons injected into it by the last administration. The optimist in me thinks that a properly motivated Mark Milley may be just the man who can add value to the process. Secretary Hegseth, give the man a chance to provide some accountability and redeem himself, by recalling him to active duty.

1. Howe’s commanding general later reduced the two-year sentence to one year, which Howe served in the federal prison at Ft. Leavenworth. The maximum confinement has not been reduced to one year.

2. 10 U.S. Code § 894 - Art. 94. Mutiny or sedition

(a) Any person subject to this chapter who—

(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;

(2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition;

(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.

(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.

3. 10 U.S. Code § 907 - Art. 107.

(a) False Official Statements —Any person subject to this chapter who, with intent to deceive—

(1) signs any false record, return, regulation, order, or other official document, knowing it to be false; or

(2) makes any other false official statement knowing it to be false;

shall be punished as a court-martial may direct.