Military and legal professionals must scrutinize orders that violate the Constitution

InTrump v. United States, No. 23-939, which was argued before the U.S. Supreme Court on April 25, 2024, and decided three months later on July 1, set forth the concept of "presumptive" presidential immunity. The court ruled that a president's exercise of "core" powers is "absolutely" immune from prosecution and added that it might just hold that a president's exercise of "noncore" powers is absolutely immune as well. However, for now, the Court held a president's use of "noncore" powers is only "presumptively" immune unless and until the government, on behalf of we the people, can show that its prosecution of criminal acts of a president would pose "no dangers of intrusion on the authority and functions of the Executive Branch." 

Whether as American lawyers or members of the United States military, it is essential to reflect on the legal, moral, and ethical duties involved in testing the constitutionality of orders received from superiors. Orders, whether issued within a chain of command or directly from a president, must be scrutinized before compliance--especially when they risk leading a service member to violate the Uniform Code of Military Justice or a lawyer to breach ethical obligations as an officer of the court. Neither lawyers nor military members possess derivative presidential immunity for failing to uphold their oaths of office.

This writing is intended to explore the ethical duty of both military personnel and members of the bar to challenge orders that contravene the fundamental obligation to support and defend the U.S. Constitution. This duty not only anchors professional integrity but serves as a crucial safeguard for the rule of law and democratic principles in the collective responsibility to work toward a "more perfect union."

1. Overview of the constitutional duty

Both military personnel and legal professionals swear an oath to uphold the Constitution. For members of the military, this duty is enshrined in their oath of enlistment https://www.army.mil/values/oath.html or commissioning, https://www.army.mil/values/officers.html, which mandates allegiance to the Constitution above all else. Similarly, lawyers, as officers of the court, are bound by their professional oaths to uphold the Constitution and the laws of the United States https://www.calbar.ca.gov/Admissions/Examinations/California-Bar-Examination/Attorneys-Oath . This shared commitment underscores the paramount importance of constitutional fidelity in both professions.

2. Historical context and examples

Throughout history, there have been notable instances where individuals in both professions have exercised their duty to challenge unconstitutional orders. For example, during the Nuremberg Trials, https://en.wikipedia.org/wiki/Nuremberg_trials, military officers and high-ranking civilians, including some members of the German bench and bar, were held accountable for following orders that violated international law, establishing a precedent that unlawful orders must be questioned. In the legal realm, attorneys have historically played crucial roles in challenging unconstitutional legislation and executive actions, such as during the civil rights movement, where lawyers fought against segregation and other post-reconstruction Jim Crow laws that violated constitutional principles, see Brown vs. the Board of Education https://www.naacpldf.org/brown-vs-board/ and Loving v. Virginia https://supreme.justia.com/cases/federal/us/388/1/. In addition to a lawyer's advocacy role, lawyers also have affirmative duties as officers of each of the courts to which they are admitted. Paramount of which is a duty of Candor Towards the Tribunal, as articulated in Rule 3.3 of the ABA Model Rules of Professional Conduct, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/comment_on_rule_3_3/

3. Legal and ethical frameworks

The legal and ethical frameworks guiding this duty are well-established. For military members, the Uniform Code of Military Justice (UCMJ) https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-47

provides a legal basis for refusing unlawful orders. Similarly, as stated above, the American Bar Association's Model Rules of Professional Conduct require lawyers to act with integrity and to challenge legal processes that undermine justice. These frameworks ensure that both professions have clear guidelines for identifying and addressing unconstitutional directives.

For examples where there have been ethical failures in the case of members of our armed service and even judges, one only needs to reflect on the outcome of the Nuremberg Trials that started in November, 1945, https://www.history.com/topics/world-war-ii/nuremberg-trials, or the My Lai Massacre and Trials in November, 1970, https://www.britannica.com/event/My-Lai-Massacre. . Service members and others responsible for leading our government's political functions or prosecuting wars must understand that, under international and military law, even when given a "direct order" from a superior, they have a duty to examine the legal and ethical boundaries of their response. They are accountable for their actions based on the specific facts and circumstances of the order given.

In the article entitled "Direct Order vs Lawful Order: Understanding the Difference," located at https://ucmj.us/direct-order-vs-lawful-order/, the author explains in the military context that while "[d]irect orders demand immediate compliance... if an order appears unlaw, recipients are typically obligated to question or refuse it, depending on the severity of the potential legal or ethical breach. On the other hand, response to a lawful order includes execution with the understanding that the order has been vetted for legality, ethical integrity, and policy alignment."

"These distinctions emphasize the importance of critical thinking and ethical judgment in structured organizations. [Because] [a]n [individual receiving an order] must exercise discernment, especially when confronted with an order that may seem ambiguous, ensuring their actions align with the legal and ethical standards."

This kind of analysis also applies to lawyers taking on frivolous cases or cases that breach their duty of candor to the court, potentially leading to severe consequences, including disbarment or even criminal prosecution. Several lawyers have learned this the hard way after engaging in unethical actions in support of former President Trump.

https://www.justsecurity.org/90509/trumps-lawyers-face-sanctions-discipline-and-indictment-how-should-the-legal-profession-respond/

4. Consequences of failing to uphold this duty

The failure to challenge unconstitutional orders can have dire consequences. For military personnel, compliance with unlawful orders can lead to war crimes and violations of human rights, as seen in historical conflicts. For lawyers, failing to uphold constitutional duties can result in miscarriages of justice and erosion of public trust in the legal system. Both scenarios underscore the critical need for vigilance and courage in upholding constitutional principles.

5. Conclusion

In conclusion, if Donald Trump should once again ascend to the White House and then undertake to execute on his promises to persecute and prosecute his real or imagined political opponents, his so-called "enemies from within," using, for example, the Insurrection Act of 1807 https://en.wikipedia.org/wiki/Insurrection_Act_of_1807 as the means to his ends, individual members of the military and/or members of the bar tasked by the president to implement his policies have a real responsibility to challenge all orders that violate the Constitution. This is a profound and solemn duty shared by military members and lawyers alike. This obligation is essential for maintaining the rule of law and protecting democratic values. By steadfastly adhering to this duty, individuals in these professions, our professions, not only honor our oaths but also contribute to the preservation of justice and liberty for all.

With a continued emphasis on the significance of our collective duty, both institutions will remain steadfast in their commitment to constitutional principles, regardless of who becomes the 47th President of the United States on Jan. 20, 2025.