Let’s fire all the lawyers

The ominous removal of the judge advocates general by the Trump administration.

Buried in the headlines surrounding Secretary of Defense Pete Hegseth’s firing of Joint Chiefs Chairman Gen. Charles Q. Brown and Chief of Naval Operations Adm. Lisa Franchetti was a development that is far more ominous: Hegseth’s sacking of Army Lt. Gen. Joseph B. Berger III, Air Force Lt. Gen. Charles Plummer, and Navy Rear Adm. Lia M. Reynolds. Those three officers were, until Friday, “The” Judge Advocate General (“TJAG”) of their respective service branches—the senior military lawyers in uniform. Getting rid of them in favor of hand-picked replacements is exactly what a secretary of Defense uninterested in legal niceties would do. And it sends an ominous message — not just to the thousands of men and women serving in the JAG Corps, or to the millions of men and women in uniform, but to the entire country. Hegseth seemed to only reinforce that message on Fox News on Sunday, suggesting that the TJAGs were removed so that they won't be "roadblocks to anything that happens."

Despite George Clemenceau’s famous quip that military justice is to justice as military music is to music, the reality is that military lawyers in the United States have long played a central role in standing up for the rule of law. When the George W. Bush administration attempted to set up a system of ersatz military commissions to try non-citizen enemy combatants detained as part of the war on terrorism, it was military lawyers in the JAG Corps who stood up first—long before large law firms mobilized in support of the Guantánamo detainees. Indeed, the very first lawsuit challenging the commissions was filed by a Navy JAG lawyer—Lt. Cmdr. Charlie Swift—on behalf of his client Salim Hamdan, whose case eventually made it to the Supreme Court (where a 5-3 majority sided with the JAG lawyers).

Military lawyers help to preserve the rule of law in any number of respects. They represent unpopular defendants in military trials (as in Hamdan). They prosecute war crimes committed by U.S. military personnel (something that apparently is part of what prompted Hegseth to fire the TJAGs). They supervise all military prosecutions to ensure that verdicts and sentences comply with the law. And they regularly provide legal advice to their unit commanders—including the relevant rules of operations in specific combat situations and the legal obligations the government has during those operations and thereafter. It’s also military lawyers who enforce the current statutory prohibitions on mistreating detainees—prohibitions that were made necessary as much by the Bush administration’s efforts to circumvent the military when it came to detainee interrogations as by the military’s own role therein. Indeed, one of the most vocal internal critics of the Bush administration’s abuses of detainees was then-Air Force TJAG Lt. Gen. Jack Rives.

Not only has there long been a norm that JAG lawyers are independent of political control, but, unlike with respect to any other military officers, Congress in 2004 codified that independence. Thus, for each service branch, there is a statute today providing that (emphasis mine):

No officer or employee of the Department of Defense may interfere with—(1) the ability of the Judge Advocate General to give independent legal advice to the [Secretary or senior uniformed officer of the service branch]; or (2) the ability of judge advocates of the [service branch] assigned or attached to, or performing duty with, military units to give independent legal advice to commanders.

To be sure, the president is still entitled to choose the TJAG (a nomination that is subject to the Senate’s advice and consent). But these statutes exist entirely to ensure that, once they are in office, each TJAG (and all of his or her subordinates) is free to speak his or her mind. Firing TJAGs for no stated reason, as Hegseth purported to do on Friday, might not violate the letter of the statute (so long as President Donald Trump is the one who actually fires them). But it sure violates its spirit. And it sends the worst possible message to more junior officers in the JAG Corps about what kind of support they can expect from senior leadership if they feel the need to push back against actions the military is taking with the approval of Hegseth and Trump.

Given all of the crises we’re confronting, the fate of three senior military lawyers might seem like relatively small potatoes. But with the military already playing a larger role along the U.S.-Mexico border; with talk of using military bases within the United States as detention facilities for non-citizens facing removal from the country; and with the ominous specter of the president potentially using the Insurrection Act to call out troops for domestic law enforcement operations (something we haven’t seen since 1992), the need for independent legal advice in the military might soon take on critically important proportions not just within the ranks, but outside them as well. For as much as courts might eventually be able to push back against military excesses, any initial speed brakes will have to come from inside the officer corps—just as we saw with Guantánamo in 2002 and 2003.

In “Henry VI, Part 2,” Dick the Butcher’s character famously says, “The first thing we do, let’s kill all the lawyers.” Shakespeare’s clear implication was that killing the lawyers was a necessary precursor to the subverting the rule of law. In the military, it might be enough to fire all the lawyers and let the killing come second.

Stephen Vladeck is the Agnes Williams Sesquicentennial Professor of Federal Courts at Georgetown University Law Center and the publisher and editor of “One First,” a popular Substack newsletter about the Supreme Court.

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