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So it is now a matter of public record that the President plans to defy all House subpoenas.

  1. Do I correctly understand that Federal employees, notably including the Armed Forces, pledge their duty first to the Constitution of the United States and only secondarily to carry out legal orders? And that they have no legal obligation to execute an illegal order? What process allows a subordinate to defy an illegal order if a superior gives the order? What legal protection does the subordinate have?

  2. Suppose the Congress holds someone in contempt. The Congress, as I understand it, goes to a court to enforce the contempt charge. The court turns to Federal law enforcement to bring action. What if the President directs Federal law enforcement to ignore the court order? What if law enforcement complies with the President?

  3. Suppose Congress orders fines. What is to be done if no one will enforce the fines?

  4. Same scenario as 1 but this time it’s impeachment and conviction: the President defies any action to remove him.

  5. What if the President simply barricades himself in the White House and orders security and military personnel to protect him? Is there a protocol in the U.S. military hierarchy to deal with this scenario?

  6. What should common citizens do if any of these scenarios play out?

  • This is a lot of questions. It might be better to break it up. With respect to impeachment, it kind of depends on the rest of the executive branch to recognize that the convicted former president has no authority. If they didn't, it would amount to a constitutional crisis, if not a coup. With regard to barricading in the White House, there's a similar question on Politics, but in short the ex-president would have no authority to order personnel to do anything. – phoog May 13 at 22:45
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Do I correctly understand that Federal employees, notably including the Armed Forces, pledge their duty first to the Constitution of the United States and only secondarily to carry out legal orders? And that they have no legal obligation to execute an illegal order? What process allows a subordinate to defy an illegal order if a superior gives the order? What legal protection does the subordinate have?

All officers of the United States government (and for that matter also all officers of state and local governments) including soldiers in the armed forces are sworn to uphold the Constitution.

Members of the armed forces are not only allowed to disregard illegal orders, they are obligated to not carry out illegal orders.

Operationally, disobeying an order due to the fact that it is unconstitutional is a defense to an effort to fire or discipline a federal government civil service employee who may only be fired for good cause after due process. In the military, the issue would usually present itself in the form of a defense in a court martial for refusing to obey a lawful order of a superior.

Of course, it would hardly be unprecedented for someone's firing from a job that was unlawful, or for a wrongful court-martial conviction, to be upheld on appeal.

Suppose the Congress holds someone in contempt. The Congress, as I understand it, goes to a court to enforce the contempt charge. The court turns to Federal law enforcement to bring action. What if the President directs Federal law enforcement to ignore the court order? What if law enforcement complies with the President?

The U.S. Justice Department is charged with bringing contempt of Congress cases at the request of Congress.

But, an attorney retained by Congress could probably bring such an action in the U.S. District Court of the District of Columbia if the U.S. Justice Department refused to do so. Contempt may be civil or criminal, and unlike ordinary criminal charges (felonies can only be brought based upon grand jury indictments and grand juries are controlled by prosecutors) either civil or criminal contempt charges can be brought by a non-governmental employee attorney.

The established practice is to seek contempt sanctions against the lowest level employee who has the authority to take the action requested, or to seek contempt sanctions against everyone from that lowest level employee up through the chain of command to the responsible cabinet officer. The President is generally not named as a party against whom contempt charges are sought.

Defiance of the law in the face of a binding and immediately effective court order would be a constitutional crisis and you would need to move to the realm of politics and political realities, and away from the realm of what the law says that people should or should not do, to meaningfully predict how a constitutional crisis turns out.

The law assumes that all government officials will obey a lawful court order duly enforced. If government law enforcement officers start defying court orders, then there is a constitutional crisis.

On the other hand, the vast majority of law enforcement officers in the United States are civil servants who aren't beholden personally to the President. They were appointed on a merit basis, they are civil servants who can't be fired without good cause and due process, they are in agencies that have an institutional culture of obeying court orders. The civil servants with more seniority (and basically all senior military officers in the U.S. military) have served under multiple Presidents of different political parties. The number of political appointees supervising them is fairly modest. Likewise, most federal judges at any given time were appointed by prior Presidents and even judges appointed by a current President will not infrequently rule against the federal government when the facts and law demand that they do so. There is less politics and there is more unity in interpretation of the law among federal judges and federal law enforcement and legal officials than is generally assumed by more cynical members of the general public.

Suppose Congress orders fines. What is to be done if no one will enforce the fines?

A court can order that the fines be paid out of the U.S. Treasury. The order itself can have the force of law without the cooperation of any U.S. Treasury official. Sustained defiance of such a court order would lead to a constitutional crisis.

Same scenario as 1 but this time it’s impeachment and conviction: the President defies any action to remove him.

What if the President simply barricades himself in the White House and orders security and military personnel to protect him? Is there a protocol in the U.S. military hierarchy to deal with this scenario?

This has never actually happened, of course, so it is hypothetical. The Treasury Department, General Services Administration and Secretary of State (and all other government officials) should revoke privileges that the President has by virtue of being President and provide them to the new acting President (realistically, in the simple scenario presented, current Vice President Pence).

The military should stay out of it, but should immediately start treating acting President Pence, and not the impeached incumbent as the Commander-in-Chief. U.S. military forces are indoctrinated on the Presidential succession and it is unlikely that many military officers would disregard a Presidential impeachment.

The Secret Service should stop defending the former President except in an ex-President capacity. In theory, one could imagine acting President Pence bringing an eviction action in the local courts of the District of Columbia just as one would with any holdover tenant. Since the local courts in D.C. are federal, this doesn't present the federalism problems that it would if the same thing were done in a state court with respect to federal real estate, and U.S. marshals would evict him and his family like anyone else.

The trickier situation in terms of creating a constitutional crisis, honestly, is really one where the President is clearly and blatantly defying the law and court orders, but the U.S. Senate refuses to convict the President in an impeachment proceeding out of partisan bias.

What should common citizens do if any of these scenarios play out?

Whatever they want, in a lawful manner. Ultimately, this would be a matter for federal government officials (elected and appointed alike) to figure out.

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  1. More generally, the courts will not compel a person to violate the law. There is no "process" for challenging the legality of an order that you have been given. If you comply and the order is in fact illegal, you may be prosecuted. If you refuse and the order is in fact legal your administrative sanction will probably be sustained.

  2. Criminal contempt of Congress is defined in 2 USC 1942. Congress might file a complaint in the US district court, DC: as far as I know there is no law to the effect that only the DoJ can file a criminal complaint in federal court. It is true that individuals can't file criminal complaints, and it might be necessary for Congress to do so, have the filing rejected, and the matter goes to the Supreme Court to determine whether Congress can prosecute a case. But let's say Congress goes through DoJ. Congress does not first get a court order to prosecute. DoJ might determine that it cannot legally prosecute the matter; now Congress might sue. The courts might hold that DoJ must prosecute the matter, in which case they will. If at this point POTUS orders DoJ to ignore the order, then The Line will have been crossed: we can assume that DoJ will not disobey a final court order, though if it is lower than SCOTUS they will appear to "disobey" by appealing the order. In general, this is all resolved by one party suing the other and letting SCOTUS sort it out (unless they refuse to get involved).

Assuming there is an impeachment and conviction, and if the ex-president won't leave peacefully, force can be used. The ex-president would be acting without authority and obedience to his orders and disobedience to his successor's orders would be illegal. Theoretically, this could pit the Capitol Police and the Marshal of the US Supreme Court against the Secret Service. It would not involve the US military, although obviously the military could illegally decide to take charge. There is no publicly advertised protocol for the military for dealing with the collapse of civilization.

  • Small nit. There is no marshal of the U.S. Supreme Court. The U.S. Marshall's service which is the one primarily charged with enforcing federal court orders is organized at the federal court district level and is a division of the Department of Justice. en.wikipedia.org/wiki/United_States_Marshals_Service – ohwilleke May 14 at 1:41
  • Okay, well I didn't go beyond en.wikipedia.org/wiki/…; the statutory authority is law.cornell.edu/uscode/text/28/672 – user6726 May 14 at 1:47
  • I stand corrected on the existence of the post. You are right on that score. As the link indicates, however, the Marshall of the U.S. Supreme Court only maintains court security for the U.S. Supreme Court, and does not enforce court orders the way that the U.S. Marshall's service does. Really, the Marshall of the U.S. Supreme Court is what would usually be called a bailiff in other contexts (i.e. a court security officer). – ohwilleke May 14 at 2:07
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    Remember the Trail of Tears was declared Unconstitutional by the Supreme Court, but as Andrew Jackson supposedly quipped, "Let [Chief Justice at the time] enforce the ruling." Which of course was commentary on the fact that SCOTUS does not enforce the law. – hszmv May 14 at 14:16
  • @hszmv In constitutional theory, that is the main check on the otherwise, seemingly absolute and supreme judicial power. – ohwilleke May 14 at 19:21
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To address:

What should common citizens do if any of these scenarios play out?

The people would vote, voice their opinions, and protest. In short, they apply political (and economical) pressure. Presumably to restore adherence to the law and remove the offender (in this case, the (ex-)President). All by threatening to do, or actually doing, voting in those who will do so and voting out those who won't.

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