And how was he able to do so, given that the chairman is not in the chain of command and lacks the formal authority to check a president?
In a recent Atlantic article, entitled “The Patriot,” Jeffrey Goldberg describes the efforts of Gen. Mark Milley, the now-retired former chairman of the Joint Chiefs of Staff, to constrain the worst impulses of his boss, President Trump, while struggling to remain appropriately subordinate to civilian control of the military. A previous article in the the New Yorker, entitled “Inside the War between Trump and his Generals,” drawn from a book by Peter Baker and Susan Glasser, told a similar story. According to Baker and Glasser, Milley considered resigning at one point, but then thought better of it: “‘Fuck that shit,’ he told his staff. ‘I’ll just fight [Trump].’ The challenge, as he saw it, was to stop Trump from doing any more damage, while also acting in a way that was consistent with his obligation to carry out the orders of his Commander-in-Chief.”
Many observers have expressed concern about Milley’s actions. In Goldberg’s view, “Milley and other military officers deserve praise for protecting democracy, but their actions should also cause deep unease. In the American system, it is the voters, the courts, and Congress that are meant to serve as checks on a president’s behavior, not the generals.” And as Doyle Hodges, former executive editor of the Texas National Security Review put it, “While Milley’s rationale is laudable, his actions were not. Politicians are chosen and held accountable by election, impeachment, and political pressure. Generals are not. No one voted for Milley. So there are some decisions Milley didn’t have the authority to make.” There is little doubt that, in Goldberg’s words, “Milley came close to red lines that are meant to keep uniformed officers from participating in politics.” The real debate is about whether he was right to do so, given the extraordinary circumstances in which he served.
Less attention has been given to the question of how Milley was able to check Trump. On paper, at least, the chairman has no such power. Under Article II of the Constitution, the president is the “commander in chief of the Army and Navy of the United States,” meaning that he or she is “the nation’s top military officer.” By statute, the president appoints the chairman, who “serves at the pleasure of the President for a term of four years.”
Relative to his boss, the chairman is a weakling. Whereas the president sits at the apex of the military, the chairman is not even in the chain of command, which runs from the president, to the secretary of defense, and then to either the combatant commanders (for operational matters) or the military department secretaries (for service-related matters). Although the chairman “outranks all other [military] officers[,]” he is expressly prohibited from “exercis[ing] military command over the Joint Chiefs of Staff or any of the armed forces.” Likewise, it is written into law that the Joint Staff, which falls under the chairman, “shall not operate or be organized as an overall Armed Forces General Staff and shall have no executive authority.” While the chairman “is the principal military adviser to the President, the National Security Council, the Homeland Security Council, and the Secretary of Defense,” the provision of advice alone is hardly enough to thwart a president.
These express legal constraints on the chairman’s power were the result of fierce interservice and interbranch legislative battles in the years following World War II. One camp—roughly made up of the Army, its supporters, and the executive branch—favored having a single officer atop the military chain of command, while the other camp—largely made up of the Navy, its supporters, and Congress—did not. The latter won the day. In fact, when Congress created the Joint Chiefs of Staff in 1947 as part of the National Security Act, there was no chairman, and Congress went out of its way to state that it did not intend “to establish a single Chief of Staff over the armed forces[.]” When the position was finally created two years later, it was just a figurehead, described as “more of an office manager than a leader.” While Congress has incrementally strengthened the power of the chairman over the decades—particularly through the passage of the 1986 Goldwater-Nichols Act—it has repeatedly rejected proposals to put the chairman in the chain of command.
So how was Milley—an adviser with no command authority who was selected by and served at the pleasure of the president—able to thwart his boss?
The answer is that the chairman’s informal influence exceeds his formal authority. His informal power is rooted in statutory language that is phrased in terms of duties and responsibilities rather than authorities. By giving the chairman a central role in the military hierarchy, these statutory provisions create a reality in which the chairman wields a degree of informal power that exceeds his express grant of authority.
Under 10 U.S.C. § 163, which governs the chairman’s role, the president may “direct that communications between the President or the Secretary of Defense and the commanders of the … combatant commands be transmitted through the Chairman” and may “assign duties to the Chairman to assist the President and the Secretary of Defense in performing their command function.” Additionally, “[t]he Secretary of Defense may assign to the Chairman … responsibility for overseeing the activities of the combatant commands,” although “[s]uch assignment by the Secretary to the Chairman does not confer any command authority on the Chairman[.]” The chairman also “serves as the spokesman for the commanders of the combatant commands, especially on the operational requirements of their commands.” (Emphasis added.)
As these provisions make clear, the law is contradictory when it comes to the chairman’s role: He is both prohibited from being in the chain of command and deeply entwined with it. The chairman is not just an adviser sitting wholly apart from the chain of command. Rather, he is a central component of the military infrastructure who serves as the nexus between the combatant commanders and their civilian superiors.
To be sure, there is a theoretical difference between the “chain of communication” and the “chain of command.” But that formalistic distinction overlooks how control over information is its own form of power. The chairman is more than a telephone wire connecting the president and secretary of defense to the combatant commanders—he is an agent who makes decisions about what and how to communicate. Additionally, by virtue of his place in the chain of communication, the chairman has convening power: the ability to call meetings, set agendas, and force decisions.
In a 2015 statement to the Senate Armed Services Committee during a hearing on military reform, Adm. James Stavridis (ret.)—who had twice served as a combatant commander —acknowledged this dynamic:
It is also time to consider simply making the Chairman of the Joint Chiefs of Staff the senior operational commander, reporting directly to the Secretary of Defense. The Combatant Commanders should report to the Chairman, not to the Secretary of Defense. Frankly, this is how the system largely works in practice anyway; and it would merely codify the existing custom into a sensible, linear chain of command.
He elaborated:
Frankly, in practice, as a combatant commander I would very typically call the Chairman, check signals with the Chairman. I would not undertake a radical departure without talking to the Chairman. I think putting the Chairman in the chain of command … is efficient, sensible, and frankly codifies what is in effect today in many ways.
Put differently, the chairman’s formal position in the chain of communication gives him informal power within the chain of command. Do something enough and it becomes habit—communicate through the chairman often enough and he effectively becomes part of the chain of command.
Goldberg provides an example of how Milley leveraged the chairman’s position in the chain of communication to exercise influence within the chain of command. Then-speaker of the House Nancy Pelosi called Milley shortly after the Capitol insurrection to ask about the security of nuclear weapons. Following the call, Milley held an emergency meeting of the nation’s top nuclear officers, including the then-commander of U.S. Strategic Command, Adm. Charles Richard. “In the meeting in his office, Milley told the assembled generals and admirals that, out of an abundance of caution, he wanted to go over the procedures and processes for deploying nuclear weapons.” After the presentation was complete, “Milley said, ‘If anything weird or crazy happens, just make sure we all know.’ Milley then went to each officer in turn and asked if he understood the procedure.” This meeting is remarkable because, as Milley later acknowledged to Goldberg, “The chain of command runs from the president to the secretary of defense to [Richard]” and does not include the chairman. Milley also later told Goldberg, “The president alone decides to launch nuclear weapons, but he doesn’t launch them alone.” (In Milley’s September 2021 memo about the phone call and meeting, he stated, “At no time was I attempting to change or influence the process, usurp authority, or insert myself into the chain of command[.]”)
The chairman’s position in the chain of communication is not the only source of his informal power. Although the chairman is prohibited from “exercis[ing] military command over the Joint Chiefs of Staff or any of the armed forces,” the duties of “assisting” the president and secretary in performing their command functions and “overseeing” the activities of the combatant commands require some amount of authority, even if the chairman exercises it on behalf of the president or the secretary. As Stavridis pointed out, the repeated execution of these duties creates a reality in which the chairman acts—and, just as importantly, is regarded—as if he is in the chain of command, even though the law insists that “[s]uch assignment [of responsibility] by the Secretary to the Chairman does not confer any command authority on the Chairman[.]” As in many areas of life, what the law says on paper and what happens in practice are not always consistent.
Additionally, the chairman’s role as principal military adviser to the president and secretary of defense provides its own source of informal power. Not only is the chairman a gatekeeper who has the ear of civilian leaders and shapes how information is presented to them, but he can also invoke his role as adviser to justify involvement in areas beyond his statutory remit. Goldberg again provides an example, writing that Milley warned two Trump loyalists “that he would make sure they would see the world ‘from behind bars’ if they did anything illegal to prevent Joe Biden from taking the oath of office on January 20.” When pressed about this encounter, Milley told Goldberg, “It’s my job to give advice, so I was advising people that we must follow the law. I give advice all the time.” Unless a president or secretary pushes back or tunes out, there is nothing to stop a chairman from providing advice—or warnings in the form of advice, in Goldberg’s example—on just about any topic related to national security, however tenuously.
Additionally, as Jim Thomas of the Telemus Group has pointed out, because the chairman is the principal military adviser to both the president and the secretary of defense, it creates an odd “situation where, de facto, the Chairman has two bosses, one of whom also serves at the pleasure of the other.” So, while, “[i]n theory, the Secretary of Defense is the ultimate power and decision authority within the Department of Defense,” the chairman also has a direct line to the president. According to Sharon K. Weiner, the chairman’s access to the president “means he is able to forge an independent relationship with the White House that can be used to upset choices made by the secretary of defense.” The chairman’s ability to go over the secretary’s head gives him influence within the chain of command.
Weiner points to yet another source of informal power: the chairman’s position as the nation’s most prominent officer. That prominence gives the chairman leverage when “politically vulnerable” presidents need the chairman as an ally, because the chairman speaks with the voice of the military. Weiner’s view is that “[a]n ambitious chairman” can use that leverage to “exploit an administration’s political weaknesses to do what he deems best for the military’s interests, regardless of the policy domain.” Prominence can be its own form of power.
Personality and circumstance also matter. Milley may have come close to “red lines” under Trump, but he returned to a more traditional role under Biden. Weiner argues that former Chairman Colin Powell was the most politically powerful chairman of all, in part because “he had considerable experience serving in inherently political positions” and because Presidents George H.W. Bush and Bill Clinton “needed Powell as a political ally.” In Weiner’s view, “not every chairman embraces or maximizes their political power” and, compared to Powell, “few other chairmen have chosen to play such outwardly powerful or independent roles.” In other words, who holds the office of chairman, and when they hold it, matters.
If having a chairman who was strong enough to check a president is a problem, then what is the solution?
Milley was able to thwart Trump because the chairman’s informal influence exceeds his formal authority. There are two ways to fix that. One would be to weaken the sources of the chairman’s informal power in order to reduce his influence. For example, Congress could tweak 10 U.S.C. § 163 so as to make the chairman less central to the chain of communication and to put into reverse the dynamic that Stavridis highlighted in his Senate testimony. Or Congress could make the secretary of defense, rather than the chairman, the principal military adviser to the president (while preserving the chairman’s role as adviser to the secretary). Additionally, senior civilian leaders (and future chairmen) could work to establish new norms to curb the chairman’s informal influence, as they did after Powell’s tenure.
But this approach is ultimately unsatisfying, for a few reasons. First, the chairman has become so central to the functioning of the military that any reduction in his role would have to be part of a comprehensive reorganization of the Department of Defense, a massive undertaking that Congress is unlikely to begin any time soon. Second, the chairman’s influence has moved in only one direction since 1949, when Congress created the position: up. Given that decades-long trend, it is hard to envision Congress now taking steps to reduce the chairman’s role. Third, because informal influence doesn’t depend on formal authority, attempts to weaken the chairman by fine-tuning the law may prove ineffective. And finally, norms are easily broken, especially in extraordinary circumstances, as was the case with Milley.
Another potential solution would be to increase the chairman’s formal authority to catch up with the reality of his informal influence. The logic behind this approach is counterintuitive: The problem is not that the chairman is too strong, but that the chairman’s informal influence exceeds his formal authority. In other words, the issue is the mismatch between the two.
Gen. Maxwell Taylor, who had served as the Army’s top officer and would later serve as chairman under Presidents John F. Kennedy and Lyndon Johnson, explained it in his 1960 book, “The Uncertain Trumpet.” Reflecting on the post-World War II fights over whether to have a single officer atop the military chain of command, Taylor wrote:
[I]t is not an overstatement to say that the Chairman of the Joint Chiefs of Staff has come to assume much of the power of the dreaded single Chief of Staff who has been the bugbear of the Congress and of some elements of the public in past discussions of defense organization. This power is not bad in itself, but it is concealed power unaccompanied by public responsibility—which is bad …. This camouflaged status of the Chairman should be taken into serious account in any consideration of future changes in the structure and organization of the Department of Defense.
Taylor’s point was that the chairman’s informal influence exceeds his formal authority. That observation is even more true now than when Taylor initially made it. Of course, Milley’s actions to thwart Trump were hardly “concealed” or “camouflaged”—far from it, as evidenced by the extensive media coverage of them. But that’s not what Taylor meant. Rather, Taylor was pointing out that the chairman’s power is concealed. This article has made a similar argument. Counterintuitively, were Congress to formalize the chairman’s power—perhaps by putting him in the chain of command or otherwise aggrandizing his role vis-a-vis the president—it might actually serve as a check on the chairman, because it would bring his power into the open and improve accountability.
But this option is also unsatisfying. In addition to the obvious objection—that formalizing the chairman’s power would only compound the problem that he is too strong—there is also Congress’s long-standing reluctance to increase the chairman’s formal authority (although it has been all too eager to pile on new roles and responsibilities). As hard as it may be to imagine Congress reducing the chairman’s role, it is even harder to imagine lawmakers voting to increase his formal authority, such as by putting him in the chain of command.
There is also a third approach, which is to accept that there are exceptional circumstances in which outcomes are determined not by the carefully enumerated powers of an office but by the character and abilities of its occupant. The law cannot anticipate every situation, nor, perhaps, should it try. As Justice Oliver Wendell Holmes famously put it in his Northern Securities Co. v. United States (1904) dissent:
Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
Holmes was talking about judicial decisions, but the same is true of policy and legislation. Not every problem has a solution, and sometimes the rush to solve problems creates new, unanticipated ones. Milley’s tenure as chairman under Trump was the civil-military relations equivalent of a great case. The best way to avoid another one is to elect the right president and hope that he or she appoints the right chairman. That is something no amount of legal tinkering or norm building can achieve.
– Nate Wood is a reserve major in the U.S. Marine Corps and an attorney for the Department of Justice. The opinions expressed are those of the author and do not reflect those of the U.S. Marine Corps, the Department of Defense or the Department of Justice. Published courtesy of Lawfare.
