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The Good Officer
PRESIDENT TRUMP, GENERAL MILLEY, AND THE
NECESSITY OF CONSTITUTIONAL FIDELITY
John C. Dehn*
INTRODUCTION
Public discourse surrounding certain events during the
final year of the Trump presidency indicate the need for a
thoughtful examination of whether senior civilian or military
officials may ever justifiably disobey a president. This difficult
issue is further complicated by the Supreme Court's recent
decision in Trump v. United States, which held that former
presidents enjoy absolute or presumptive immunity from
criminal prosecution for their official acts.1 This Article
leverages published reports and insider accounts to explore the
delicate questions of whether, and if so under what
circumstances, one's oath to support and defend the Constitution
of the United States may require civilian or military officials to
resist or defy unconstitutional presidential orders.
In 2021, Bob Woodward and Robert Costa published a
book in which they reported that General Mark Milley, then
Chairman of the Joint Chiefs of Staff, had called his Chinese
counterpart during the uncertainty following the 2020 election
to prevent the Chinese government from making a
* Associate Professor and Faculty Director, National Security and Civil Rights
Program, Loyola University Chicago School of Law. Thanks to participants and
attendees at the National Institute of Military Justice Thirtieth Anniversary
Symposium, as well as John Breen, Bill Banks, Josh Braver, Phil Cave, Joe Ferguson,
Paul Finkelman, Amy Gaudion, Paul Kapfer, James Gathii, Jospeh Nunn, Juan Perea,
Steven Ramirez, David Sloss, Jeremy Telman, Rachel Von Landingham, and especially
Professors Barry Sullivan and Jeff Powell, for helpful discussions or comments on earlier
drafts. Thanks also to Emily Binger, Jake Gnolfo, Owen Fink, and the Brooklyn Law
Review editors and staff for their outstanding research and editorial assistance. I am
responsible for any remaining errors. This Article significantly expands upon and refines
tentative thoughts originally presented in an essay at the National Institute of Military
Justice Thirtieth Anniversary Symposium, available at https://jnslp.com/wp-
content/uploads/2022/04/MilitaryJustice_DehnTheGoodOfficer.pdf
[https://perma.cc/H7NQ-XHBG].
1 Trump v. United States, 144 S. Ct. 2312, 2328 (2024).
1](ViewImageLocal?handle=hein.journals/brklr90&div=1&collection=&method=preview&ext=.png&size=3)
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