On Friday, President Donald Trump fired the Chairman of the Joint Chiefs of Staff, Air Force General Charles Q. Brown. This ends a distinguished career for General Brown, the second African-American to serve as the U.S. military’s most senior officer (confirmation vote 83-11), and someone who sailed through the Senate confirmation process when he was previously nominated for Air Force Chief of Staff (98-0 vote).
The firings also appear to breathe life into the military career of a retired Air Force lieutenant general, Dan Caine, whom Trump said he will nominate to take Brown’s place. What’s more, Secretary of Defense Pete Hegseth fired the first woman to serve as Chief of Naval Operations, Admiral Lisa Franchetti; Air Force Vice-Chief General James Slife; and all three Judge Advocates General (JAGs), the top uniformed attorneys for the Army, Navy, and Air Force, Army Lt. Gen. Joseph B. Berger III, Air Force Lt. Gen. Charles Plummer and Rear Adm. Lia M. Reynolds. In total, Trump and Hegseth fired six of the nation’s most senior officers, with more than 200 years of combined, hard-earned military experience—an unprecedented shakeup of senior military leadership.
This unprecedented purge of the nation’s top brass suggests that Trump, who has attacked former Joint Chiefs Chairman Mark Milley as insufficiently loyal and reportedly said, “I need the kind of Generals that Hitler had,” may attempt to fill these roles with officers he perceives as loyal to him personally. It also raises a host of legal and policy questions that must be addressed before the Senate can provide its advice and consent on a flurry of new military nominations. I was a senior Navy personnel lawyer in the Pentagon, and I know from experience that the legal and policy issues surrounding constitutional authorities, personnel law, and civil-military relations are complex. But here is how I would analyze them.
Did President Trump Have Authority to Fire These Senior Officers?
Presidents have wide latitude to remove senior military officers, but the nature and scope of these removals raise serious questions. Military officers serve at the discretion of the president. For example, the statute governing the Chairman of the Joint Chiefs’ role explicitly states that “[T]he Chairman serves at the pleasure of the President for a term of four years.” And the statute establishing the position of Judge Advocate General provides that the JAG shall be appointed by the President with the advice and consent of the Senate.
Historically, the president’s authority to appoint and remove officers has played a vital role in helping ensure civilian control over the military—an important constitutional principle that has served the nation well since the dawn of the republic. For example, President Harry Truman famously fired General MacArthur, a wildly popular five-star general, during the height of the Korean War for openly disagreeing with Truman over the broader American strategy on the Korean peninsula. While Truman was criticized for this decision and faced massive domestic pushback, history has validated the wisdom of subordinating the military to civilian leadership.
But Secretary Hegseth, in response to a question about his decision to fire the services’ three top JAGs, made a troubling statement on Fox News Sunday. He stated, “We want lawyers who give sound constitutional advice and don’t exist to attempt to be roadblocks to anything that happens.” Congress makes it unlawful for any officer or Department of Defense employee to interfere with the ability of the Judge Advocates General to give independent legal advice. At the very least, Hegseth’s statement that the Administration was firing the JAGs to remove them as “roadblocks” calls into question the Administration’s compliance with the spirit of this statutory requirement.
Are These Firings Unusual?
Yes. Under federal law, the Chairman of the Joint Chiefs of Staff is the principal military adviser to the President, the National Security Council, the Homeland Security Council, and the Secretary of Defense. Like all uniformed personnel, the Chairman is apolitical, and former Chairmen have historically served out their terms across changes in presidential administration. The Goldwater Nichols Act, which established the role of Chairman, prescribes a four-year term that begins on October 1 of an odd-numbered year—deliberately ensuring a level of continuity and stability at the Pentagon. That design of insulation from politics is undermined by firing the individual before their term ends.
While it was the president’s constitutional prerogative to remove these six senior officials, an important constitutional norm separating the military from political activities is being stressed in new and troubling ways. These six officers are not being fired for misconduct, insubordination, or any specific performance issue. The reasons are murky, but appear in part to relate to some of the senior officers’ commitment to diversity initiatives, a priority of the earlier administration.
What is the Role of Military JAG Attorneys?
No articulable reason has been offered for the mass firing of the three top JAG attorneys, who play a critical role in overseeing the military justice system and upholding the rule of law and whose summary removals are unprecedented in modern times. Former Air Force JAG Major General Charles Dunlap does an outstanding job outlining the critical role that JAGs play in providing independent, nonpartisan legal advice here. And Congress reinforces the role that JAGs play in providing expert military legal advice. Indeed, as noted above, existing law prohibits any military or civilian member in the Department of Defense from interfering in independent legal advice given by the Judge Advocate Generals of each service.
The firing without apparent cause of the service JAGs is particularly disturbing. I proudly served as a Navy JAG, and can say from experience that JAG attorneys play a critical role in providing neutral, independent, fact-based guidance to commanders up and down the chain of command. This legal advice ensures that the military follows the law and acts within its constitutionally prescribed role. That can be especially important in determining the legal boundaries for when the U.S. military can be used domestically. During the George W. Bush Administration, uniformed JAGs were purposefully kept out of the loop, excluded from the so-called “war council” that issued the infamous torture memos. Civilian leaders knew that the senior JAGs opposed the administration’s torture policy and did not want pushback. Yet how much harm did legalizing torture cause to the United States’ mission, not to mention our long-term credibility and security? Congress, angered at the sidelining of service JAGs during this episode, responded in 2008 by elevating their positions from two stars to three, a rank that each holds to this day.
Indeed, uniformed JAGs are keenly aware of the importance of adherence to the laws of war and are the military’s experts on operational law, a field of growing importance. Operators across the services depend on JAGs to advise them on how to carry out their missions safely and lawfully. I can speak to this from firsthand experience. Prior to serving as a JAG, I was a tactical jet aviator flying missions from aircraft carriers during both an international armed conflict in 2003 and operations enforcing the no-fly zone in Iraq in 2001. The operational legal environment in the Middle East during that time was extraordinarily dynamic, dangerous, and legally complex. As an aircraft mission commander, I relied on JAG officers to educate me on complex rules of engagement and translate America’s international legal obligations from the treaty to the cockpit. The JAG assigned to my aircraft carrier strike group was a former Navy SEAL—similar to many JAGs who have prior operational and combat experience. I recall peppering him with a slew of questions and real-world scenarios that we could face in the cockpit, knowing that we would just have seconds to react. His advice was critical to our safety and success.
The administration’s move to fire the top JAG attorneys is ominous, and suggests they’ll try to stack these roles with officers they believe will be more pliant and less likely to push back against unlawful orders. Defense Secretary Hegseth has already made several disparaging remarks about JAGs, who he derides as “jagoffs.” That’s insulting and demeaning to a critical component of our armed forces, and reflects an aversion to upholding the rule of law. It also misunderstands the role of JAGs and uniformed personnel more broadly, who follow lawful orders—which have a high presumption of legality—across changes in administration. This special trust is essential to the rule of law and civilian control of the military. After all, military officers take an oath to the Constitution, not to a particular person or political party.
Does the Nomination of Lieutenant General Caine Raise Any Legal Issues?
Yes. There are several legal issues arising from Lieutenant General Caine’s experience, status and current rank. To be clear, Lieutenant General Caine has had a truly extraordinary career as an Air Force pilot where he served as a White House Fellow and in a variety of top leadership positions. But the Goldwater–Nichols Act puts in place the highest of high bars for appointment to Chairman. The Senate should ensure that this appointment meets the legal prerequisites for the Chairmanship described below.
- Experience. Current law requires that the Chairman of the Joint Chiefs have certain prior experiences—either as Vice Chairman, or as a combatant commander or service chief—to be eligible for appointment. To date, every prior Chairman has met this requirement. While Lieutenant General Caine lacks any of these experiences, the statute allows the president to waive this requirement if he determines that “such action is necessary in the national interest.” Although President Trump can waive the requirement, Congress identified these prior experiences for a reason: to reward success at the four-star level in joint assignments. Joint assignments demand specialized skills and knowledge of joint interoperability and how the different services work together in complex operational environments. Former Senator Goldwater insisted that the military embrace joint operations to avoid disasters—such as the failure to rescue American hostages in Tehran—that demonstrated the inability of the different services to work together.
- Status. Under the Goldwater-Nichols Act governing military personnel law and the Pentagon’s organization, Congress requires that any officer appointed to serve as Chairman of the Joint Chiefs must be an officer “of the regular components of the armed forces.” Title 10 of the U.S. Code does not expressly define “regular components,” but does distinguish between “regular” and “reserve components”—indicating that members of the Reserves are not members of regular components of the armed forces for purposes of the statute.As of this writing, it remains unclear whether Lieutenant General Caine meets the baseline requirement for appointment as a member of the “regular component.” It appears that he is currently retired. Caine served in a variety of Guard assignments and his bio notes that “from 2009-2016, Caine was a part-time member of the National Guard and a serial entrepreneur and investor.” What is his current status? Is he part of the Retired Reserve?Recalling him to active duty will be a necessary first step, but will he still be in a reserve component status? If so, that is a problem. Unlike the Goldwater–Nichols Act’s separate requirement that the Chairman have prior experience as the Vice Chairman of the Joint Chiefs of Staff or as a combatant commander or service chief, the statutory requirement that the Chairman come “from the officers of the regular components of the armed forces” cannot be waived by the president alone and would require action by both chambers of Congress. This question regarding status must be clarified before the Senate moves forward to vote on this nomination.
- Rank. Lieutenant General Caine is currently a three-star officer. Every nominee to serve as Chairman of the Joint Chiefs of Staff has served for years with four stars, a rank they would necessarily have attained by serving in one of the roles Congress specified as a prerequisite for appointment as Chairman. While there is no legal bar to the president nominating a three-star officer without prior joint experience given the waiver provision described above, so long as the status issue described above is resolved, the nomination of someone at the three-star rank who has not served as a combatant commander or service chief is unusual and worthy of further Senate inquiry.
Beyond the legal issues raised by Caine’s nomination, it is striking that Trump overlooked several outstanding officers who already meet the existing Goldwater–Nichols Act statutory requirements, to include leading a combatant command. For example, Admiral Sam Paparo is the Commander of Indo-Pacific Command, a command spanning 36 nations (to include China), 14 time zones, and 60 percent of the world’s population. And there are numerous four-star officers who don’t present the legal issues with experience, rank and status that I highlighted above.
What explains the end run around these dozens of qualified officers in favor of Caine, who by all accounts had an extraordinary career but falls short of the statutory criteria in multiple respects?
Does Congress Have a Role in These Military Officer Appointments?
Yes. Congress can and should respond to these unprecedented personnel moves in several ways.
First, the Senate has a strong constitutional advise and consent role for all the newly nominated military officers. And heightened scrutiny is warranted given the unusual nature of Caine’s candidacy and the broader, troubling context.
Second, the Senate must ask searching questions of a nominee who Trump himself has said expressed personal political loyalty to the president:
“He said, ‘I’ll kill for you sir,” Trump said. “Then he puts on a ‘Make America Great Again’ hat.”
The Department of Defense has strict guidance prohibiting service members from engaging in partisan political activities. Indeed, all military personnel are instructed to avoid “the inference that their political activities imply or appear to imply DoD sponsorship, approval or endorsement of a political candidate, campaign or cause.”
Caine has reportedly said he did not wear a MAGA hat, but the fact Trump has highlighted this as an apparent selling point for Caine suggests he will nominate him because he views the retired lieutenant general as a loyalist. Senators should ask him whether he wore a MAGA hat, and said “I’ll kill for you sir,” but should also ask probing questions about his view of the military’s role in our constitutional scheme and how he would respond to unlawful orders. They should ask for specific commitments that he will put his oath to the Constitution above his personal political views or loyalties. And they should also probe his qualifications to serve in a role traditionally occupied by officers with requisite experience and rank.
Third, given the broader and very serious concerns about Trump’s purge of apolitical career officers and stated desire to have loyalist generals, the Senate should consider using other tools at its disposal to push back. During the prior Congress, Senator Tuberville held up the promotions of hundreds of flag and general officers over unrelated objections to the Pentagon’s abortion policy. Tuberville’s blockade applied across the board to hundreds of officers at all ranks, the overwhelming majority of whom played no role in setting any type of Pentagon policy—and it threatened readiness and retention and harmed military families across the services, as I argued at the time. A similarly sweeping hold on all officer promotions would be just as problematic now, but Senators should consider wielding their authority in a more targeted way, including by withholding consent for specific nominees who do not pass muster.
Conclusion
Make no mistake: these firings are extraordinary and destabilize a longstanding norm of separating uniformed military members from politics. It is not an overstatement to characterize these firings as unprecedented and dangerous. What’s more, this purge is occurring against a backdrop of massively complex national security challenges in Ukraine, the Middle East, and beyond.
Congress, which the Constitution envisions having a robust role in the appointment of officers and funding the military, must assert itself. How will they respond to this troubling politicization trend?