Following his 2020 election loss, Trump’s allies aimed to ensure a more unimpeded execution of power in a potential second term. They planned to replace conservative career lawyers in favor of loyalists to prevent legal objections. This approach manifested in the Justice Department and Pentagon, where independent legal advisors were swiftly dismissed. Defense Secretary Pete Hegseth downplayed the importance of senior military lawyers, advocating for politically aligned successors, and exhibiting a hostile view toward their roles. Critics warn these actions undermine legal checks and signal a push towards totalitarian governance, echoing historical tensions regarding executive power and legal independence.
Following President Trump’s defeat in the 2020 election, his supporters contemplated a different strategy for his potential return to office. They concluded that one key takeaway from his first term was the frequent legal objections raised by government lawyers, including conservative Republican appointees, against propositions made by him or his White House team.
In future endeavors, they expressed during campaign interviews, they would appoint significantly more lenient gatekeepers. Fast forward to a month into a term characterized by Mr. Trump’s extreme challenges to the foundational aspects of government, his administration is actively working to undermine a vital internal safeguard: independent legal reasoning.
Mr. Trump’s officials have rapidly cleaned house at the top levels of the Justice Department, replacing career lawyers with his own legal defenders. They have diminished the role of the department’s Office of Legal Counsel, ignoring its customary function of reviewing draft executive orders, and have left it without an acting chief. Last week, Attorney General Pam Bondi escalated the purge by dismissing the chief lawyer at the Bureau of Alcohol, Tobacco, Firearms and Explosives.
This takeover of legal positions has now reached the Pentagon. Late last Friday, Defense Secretary Pete Hegseth terminated the top judge advocates general from the military. These three-star lawyers provide impartial and nonpartisan counsel regarding both the international laws of war and the legal limits Congress has set for armed forces operations.
In a press conference this week, Mr. Hegseth appeared to downplay the significance of the senior uniformed lawyers, who typically serve fixed terms in nonpartisan roles and do not ordinarily step down when a new president is inaugurated. He asserted that none were “well suited,” and expressed his desire to avoid individuals who “exist to block anything that occurs in their areas of responsibility.”
The dismissals and Mr. Hegseth’s rationale have sparked concerns among retired JAG officers. Their training aims to assist commanders in identifying lawful pathways to accomplish their goals, which means it is uncommon for them to simply say “no” — though sometimes “no” is the only viable answer.
The swift removal of independent lawyers across government recalls a line from Shakespeare: “The first thing we do, let’s kill all the lawyers.” Some, including Justice John Paul Stevens in a 1985 ruling, have interpreted this sentiment as a warning that “disposing of lawyers is a step toward a totalitarian form of government.”
During his appearance on “Fox News Sunday,” Mr. Hegseth was questioned about a similar caution raised by a law professor, who warned that the administration’s actions could indicate plans to bypass the law. He dismissed this assessment as “hyperbole,” asserting that the removal of the judge advocates general was aimed at injecting “fresh blood,” not enabling illegality.
However, Mr. Hegseth, a former mid-level Army infantry officer, has long held a contentious view of military lawyers. He derided them in his memoir as “jagoffs,” questioned the rationale behind adhering to the Geneva Conventions, and blamed them for what he perceived as excessively constraining rules of engagement on the battlefield.
Mr. Hegseth appeared unaware that it is the top commanders, not their legal advisers, who determine the standards in place. In combating insurgencies in Iraq and Afghanistan, commanders sometimes opted for more restrictive measures concerning engagement as a strategy to minimize civilian casualties that could incite anti-American sentiment among local populations.
Specifically, Mr. Hegseth dismissed Lt. Gen. Joseph B. Berger III of the Army and Lt. Gen. Charles Plummer of the Air Force. The position of their naval counterpart was already unoccupied as Vice Admiral Christopher French had unexpectedly retired following Mr. Trump’s election win.
In defending his decisions, Mr. Hegseth also indicated a desire for greater political influence over the selection of their successors, stating that they would hold a lower rank.
During his Fox News interview, he criticized the established process for appointing senior military lawyers, which is mandated by law, insinuating that the administration might not adhere to it in filling these roles.
Yet, Mr. Hegseth inaccurately described the appointment process, claiming that the top judge advocates general have traditionally “been chosen by each other.” According to retired JAG officers, in reality, boards constituted of military officers, most of whom are not lawyers, are the ones recommending nominees.
Retired Lt. Gen. Christopher F. Burne, who served as the top Air Force lawyer from 2014 to 2018, noted that these boards typically encompass eight to twelve three- or four-star officers, of whom only one — the current top judge advocate general, who is nearing retirement — qualifies as a lawyer.
Additionally, Mr. Hegseth stated that future top JAG officers would only be two-star generals, thereby demoting the positions from the three-star status they have held since 2008, when Congress elevated them to that rank. This legislation aimed to enhance the influence of the rule of law in decision-making at the Pentagon, ensuring that JAGs would be included in pivotal meetings and provided with a seat at the table.
The president has removed board members of independent agencies, inspectors general, and civil servants, defying existing laws that restrict such dismissals. He has also dismantled the U.S. Agency for International Development, merging its fragments into the State Department despite a law mandating its independent status, and has refused to allocate funds approved by Congress.
Throughout the 2024 campaign, he and his team highlighted other extreme policies they envisioned. One that may be pertinent to the limitation of top military lawyers is Mr. Trump’s repeated claims of wanting to deploy the armed forces domestically to combat crime in Democrat-controlled cities, search for undocumented immigrants, and suppress “riots.”
The Posse Comitatus Act generally prohibits the military from engaging in law enforcement activities; however, the Insurrection Act does offer some exceptions. Nevertheless, the notion of utilizing the military against American citizens is controversial. Military and law enforcement officials resisted Mr. Trump’s aspirations during the Black Lives Matter protests in 2020.
Few of Mr. Trump’s aides embody his perspective on presidential power more than Russell T. Vought, who, as during Mr. Trump’s first term, oversees the Office of Management and Budget and advocates for consolidating White House authority within the executive branch. During the interim period, Mr. Vought led a pro-Trump think tank focused on establishing a legal framework justifying troop deployment on U.S. soil, even to quash protests that Mr. Trump labels as riots.
In a 2023 speech, which ProPublica obtained a video of, Mr. Vought articulated that his think tank aimed to create alternative and more lenient legal opinions for the next president. “Most of the time in the Oval Office, we would propose some policy solution, and then the lawyers would come in and say: ‘It’s not legal. You can’t do that. That would overturn this precedent. There’s a state law against that,’” he recounted.
Mr. Vought elaborated: “We’re attempting to establish a shadow Office of Legal Counsel so that when a future president asks, ‘What legal authority do I need to suppress the riots?’ we can respond affirmatively, without the legal or defense community asserting that, ‘This is an improper use of what you’re attempting to do.’”
Mr. Trump has taken a defiant stance towards the multitude of lawsuits prompted by his actions, proclaiming on social media that “he who saves his Country does not violate any Law.” His attitude aligns with a concerted effort by his inner circle to promote an expansive interpretation of presidential authority known as the unitary executive theory.
Advocates of this ideology seek a reinterpretation of the Constitution by the Supreme Court — contrary to a 1935 precedent — to prohibit Congress from enacting laws that restrict the president’s complete control over the executive branch. This would include revoking Congress’s ability to establish independent agencies beyond direct presidential control and limiting his capacity to summarily dismiss any executive branch official at will.
In an executive order recently issued to mandate that independent agencies fall under White House oversight, Mr. Trump stated that officials within the executive branch are not permitted to independently interpret legal matters, insisting they must accept what he or Ms. Bondi deems as lawful.
“The president and the attorney general’s views on legal matters are authoritative for all employees in the execution of their official responsibilities,” the order proclaimed.
Emil Bove III, who previously served as Mr. Trump’s criminal defense lawyer and is now the acting deputy attorney general, echoed a similar sentiment after he instructed the U.S. attorney in Manhattan to drop corruption charges against Mayor Eric Adams of New York. He left the door open for potentially reviving the case later.
Mr. Bove stated that maintaining the case prevented Mr. Adams from dedicating his “full attention and resources” towards achieving the president’s immigration goals. When the interim U.S. attorney, Danielle Sassoon, rejected the order, she framed it as an unconstitutional use of prosecutorial power to coerce Mr. Adams into complying with a specific political agenda.
When accepting Ms. Sassoon’s resignation, Mr. Bove made a striking assertion: she was the one who had breached the Constitution by daring to imply that she had “the discretion to interpret the Constitution in a manner inconsistent with the policies of a democratically elected president and a Senate-confirmed attorney general.”
A similar confrontation with judge advocates general occurred during President George W. Bush’s administration following the Sept. 11 terrorist attacks, presaging the broader campaign currently underway in the Trump era.
Politically appointed civilian lawyers in the Bush administration embraced an expansive interpretation of the powers granted to the president as commander in chief by the Constitution. They asserted that Mr. Bush could lawfully instruct the military, in matters concerning wartime detainees, to disregard the Geneva Conventions and domestic laws regarding military commissions and the torture of prisoners.
The top JAGs vehemently opposed these views, leading the Bush administration to argue that they were mandated to accept the Justice Department’s legal interpretations. The administration also excluded uniformed lawyers from significant discussions and attempted to alter military regulations to subordinate them to politically appointed civilian general counsels.
In response, Congress enacted legislation in 2004 declaring it illegal for anyone at the Pentagon to interfere with the ability of JAGs “to provide independent legal advice” to their respective service secretaries and chiefs of staff. These laws still remain effective.
John Ismay contributed reporting.