How to Slow-Walk a President

This week, Americans learned from a book by one of the country’s preeminent journalists and from an extraordinary opinion piece in the New York Times that members of President Donald Trump’s own administration are actively trying to stymie some of his policies—decisions and orders they see as irresponsible or even dangerous.

But what can Cabinet secretaries and other government officials actually do if the president undertakes something genuinely reckless—an unwarranted military attack or even a nuclear strike? Plenty, as it turns out, although they can’t always do it legally or constitutionally.

With Trump, the question has loomed large almost since he stepped off that escalator in his eponymous New York tower in 2015 to announce his run for president. But it took on new urgency when an anonymous senior administration official wrote in the Times this week that an internal “resistance” was “working diligently from within to frustrate parts of his agenda and his worst inclinations.”

It’s not clear which parts of that agenda the writer is referring to, but it is highly likely that some of them have had to do with decisions on the use of force. Indeed, based on the new book by Bob Woodward and information from other sources, it appears that the Pentagon and CIA both have been defying or slow-walking Trump’s more militant impulses almost since the start of his presidency.

How has this worked? Legally, the president of the United States enjoys nearly unchecked power to use force when and where he wants—with one of the few restraints being the 1973 War Powers Resolution and its constitutionally questionable provision giving him a 60-day time limit before congressional approval is required.

“Constitutionally the president is commander in chief of the armed forces without qualification, and no subordinate can put in place an effective veto on his orders,” said Jeh Johnson, a former homeland security secretary and Defense Department general counsel.

This is especially true of America’s nuclear arsenal and is partly a holdover from the Cold War, when a fast response time was a key part of U.S. deterrence strategy; hence the nuclear “football” that accompanies the president everywhere. Nuclear fail-safe protocols for executing commands are intended only to confirm the president’s identity, not his sanity. Thus, technically, Trump could order a nuclear strike almost entirely on his own.

“For better or worse, our constitutional system assumes a rational and mature actor at the top,” Johnson said.

Little of this system has changed, though more than a quarter-century has passed since the Soviet Union disappeared. Last year, the Senate Foreign Relations Committee, led by retiring Trump critic Sen. Bob Corker, a Republican, held a hearing to consider changes to the president’s authority to launch nuclear weapons—including requiring the president to get the Pentagon chief’s approval. But Congress has not acted.

“I’m scared shitless. I think we’re probably now as close as we were as during Able Archer [the 1983 nuclear exercise in which the United States and Russia almost accidentally went to war] or the Cuban missile crisis to something happening,” said Scott Horton, a human rights lawyer who specializes in illegal covert war.

“A guy with this power who could do anything at a moment of whim and doesn’t think these things through.”

But in most of the actual use-of-force scenarios Trump is likely to encounter, there are practical restraints on his actions that the “adults in the room” (as the Times op-ed writer referred to them) could impose. They can ignore orders, build in bureaucratic obstacles, or slow-walk the process—all methods that critics of Trump within the administration have apparently tried.

One example of this occurred a year ago, after Trump threatened to “totally destroy” North Korea, pledging to inflict “fire and fury like the world has never seen.” A former top government legal counsel told Foreign Policy that Pentagon officials put in place a laborious 12-step process that the president would have to go through before bombs actually dropped.

Woodward, the veteran chronicler of presidencies at the Washington Post, describes another case in his new book, Fear: Trump in the White House.

Woodward reports that after Syrian President Bashar al-Assad launched a chemical attack on his own people in April 2017, Trump called Defense Secretary James Mattis and said, “Let’s fucking kill him.” Mattis hung up and told one of his aides: “We’re not going to do any of that. We’re going to be much more measured.” He prepared options for an airstrike on Syrian military positions, and Trump went along with Mattis’s recommendations.

According to Yale University legal scholar Harold Koh, who served as President Barack Obama’s legal counsel at the State Department, “Whether Mattis is the guy who wrote the thing [in the Times], it clearly represents the way he’s been conducting himself.”

Koh said the defense secretary could gum up the system in other ways as well. “If Mattis doesn’t want to do it [something Trump wants], then he can say, ‘We have to develop a series of scenarios,’” said Koh, who sat in on countless meetings related to presidential decisions on the use of force.

“Then you have to have meetings in the situation room. Then a bunch of lawyers get involved, then someone does a laydown where they present all of the scenarios. And the ramifications legally, politically, and diplomatically. … At that point, about 100 people have weighed in.” And by then, Trump might be overwhelmed by the arguments against his initial impulse or may have forgotten exactly what he asked for.

Something similar occurred after one of Trump’s first declarations about the military, his tweets banning transgender people from serving. Gen. Joseph Dunford, the chairman of the Joint Chiefs of Staff, said at the time that without an official order from the president, “we will continue to treat all of our personnel with respect.” Added Capt. Jeff Davis, Mattis’s spokesman, “We don’t execute policy based on a tweet.” Mattis has since sought to soften the policy, which has been tied up in the courts, saying in February that transgender men and women could still serve if they did so “in their biological sex.”

And after declaring during the 2016 campaign that he wanted to target the families of terrorists and use waterboarding, but meeting with resistance from Mattis, Trump quickly deferred to him. “[Mattis] has stated publicly that he does not necessarily believe in torture or waterboarding or however you want to define it,” Trump said just a week into his presidency. “I don’t necessarily agree, but I would tell you that he will override because I’m giving him that power.”

Certain presidential orders must be accompanied by legal findings, or what’s known as a “national security finding.” But if the people around Trump do not draft such orders—and no one tells him they are necessary—that could be another quasi-legal way to stop him.

“There is a requirement for the president to make a determination, and it would be traditional for that be to reduced to writing” that provides a form for the order, said Robert Taylor, a former Pentagon acting general counsel.

Still, Taylor and other government lawyers disagree on whether even the legal requirement to draft a written order could override a presidential order in the end. Some laws such as Title 50 governing CIA activities put in the caveat that such findings “shall be in writing, unless immediate action by the United States is required and time does not permit.”

Even so, added Horton: “One thing that strikes me repeatedly is Trump has this vast authority and power but doesn’t seem to understand how to use it.” And the “steady state” of resisters—as the Times writer called them—are probably exactly the people he needs to explain those nuances.

Matthew Waxman, who fought many bureaucratic battles over fighting terrorism while working as a lawyer in George W. Bush’s Pentagon and State Department, agrees. “It’s not like he has a red phone that goes directly to forces on alert in the Middle East who are on standby to carry out an attack. He actually has to know how to do it. … That means going with his national security advisor and transmitting proper orders. It means in practice that at each stage a decision could be at least slowed down if somebody thought it was illegitimate.”

There is some precedent for what is apparently happening in the Trump administration. In 1974, with President Richard Nixon under impeachment pressure because of Watergate and drinking heavily—and still floating “madman” theories of nuclear brinkmanship—Secretary of Defense James Schlesinger reportedly ordered Gen. George S. Brown, chairman of the Joint Chiefs of Staff, not to execute Nixon’s orders without checking with him.

According to a another version, Schlesinger ordered military commanders to “check with either him or Secretary of State Henry Kissinger before executing” a nuclear launch order from Nixon. (Schlesinger, knowing such actions would have violated the law, later denied both accounts, saying in 2007 that he told Brown to check with Schlesinger if Brown received an order from “the White House staff,” not Nixon himself.)

In the end, Nixon’s resignation resolved those concerns.

In the current case, Trump’s critics say, something more dramatic might be needed: invoking the 25th Amendment, under which the vice president and a majority of the president’s Cabinet can vote to effectively sideline him, at least for a time.

“This is getting worse, and it does present the 25th Amendment scenario,” Koh said. “If Trump proposes to do something clearly illegal and is acting in an irrational fashion so that a number of people refuse to execute his orders, then the VP and eight Cabinet members can say he’s relieved of his duties.”

Despite the stout denials coming from Trump’s Cabinet about who authored the New York Times op-ed, that possibility now seems more realistic given the “resistance” movement inside the administration.