If you are referring to a presidential pardon, that is an entirely different conversation and topic.
Other than that, I totally disagree with your assertions as well as your interpretation of the constitution.
When one enlists in the United States Military, active duty or reserve, the following oath is taken:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.
National Guard enlisted members are required to take a similar oath, swearing additionally to obey the orders of the Governors of their states of enlistment.
Officers, upon commission, swear to the following:
I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.
Military discipline and effectiveness are built on a foundation of obedience to orders. Recruits are taught to obey orders from their superiors immediately and without question, right from day one of boot camp.
Military members failing to obey lawful orders issued by their superiors risk serious consequences. Article 90 of the Uniform Code of Military Justice (UCMJ) outlines the crime of willful disobedience by a military member a superior commissioned officer. Article 91 covers willful disobedience of a superior Noncommissioned or Warrant Officer. Article 92 conveys what constitutes the crime of disobedience of any lawful order (the disobedience does not have to be "willful" under this article).
These articles require the obedience of LAWFUL orders. Not only should an unlawful order not be obeyed, obeying such an order can result in criminal prosecution. Military courts have long held that military members are accountable for their actions even while following orders.
"I Was Only Following Orders. "
"I was only following orders," has been unsuccessfully used as a legal defense in hundreds of cases (probably most notably by Nazi leaders at the Nuremberg tribunals following World War II).
The first recorded case of a United States Military officer using the "I was only following orders" defense dates back to 1799. During the War with France, Congress passed a law making it permissible to seize ships bound for any French Port. However, when President John Adams wrote the authorization order, he wrote that U.S. Navy ships were authorized to seize any vessel bound for a French port, or traveling from a French port. Pursuant to the President's instructions, a U.S. Navy captain seized a Danish Ship (the Flying Fish), which was en route from a French Port.
The owners of the ship sued the Navy captain in U.S. Maritime Court for trespass. They won, and the United States Supreme Court upheld the decision. The U.S. Supreme Court held that Navy commanders "act at their own peril" when obeying presidential orders when such orders are illegal.
The Vietnam War presented the United States military courts with more cases of the "I was only following orders" defense than any previous conflict. The decisions during these cases reaffirmed that following manifestly illegal orders is not a viable defense from criminal prosecution.
In United States v. Keenan, the accused (Keenan) was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal." (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).
Probably the most famous case of the "I was only following orders" defense was the court-martial of First Lieutenant William Calley for his part in the My Lai Massacre on March 16, 1968. The military court rejected Calley's argument of obeying the order of his superiors. On March 29, 1971, Calley was convicted of premeditated murder and sentenced to life in prison.
However, the public outcry in the United States following this highly-publicized, controversial trial was such that President Nixon granted him clemency. Calley wound up spending 3 1/2 years under house arrest at Fort Benning, Georgia, where a federal judge ultimately ordered his release.
In 2004, the military began court-martials of several military members deployed to Iraq for mistreating prisoners and detainees. Several members claimed that they were only following the orders of military intelligence officials. Unfortunately (for them), that defense doesn't fly. The maltreatment of prisoners is a crime under both international law and the Uniform Code of Military Justice (see Article 93 — Cruelty and Maltreatment).
It's clear, under military law, that military members can be held accountable for crimes committed under the guise of "obeying orders," and there is no requirement to obey orders which are unlawful.
However, here's the rub: A military member disobeys such orders at his/her own peril. Ultimately, it's not whether or not the military member thinks the order is illegal or unlawful; it's whether military superiors (and courts) think the order was illegal or unlawful.
Case in point: In 1995, Spec-4 Michael New was serving with the 1/15 Battalion of the 3rd Infantry Division of the U.S. Army at Schweinfurt, Germany. When assigned as part of a multinational peacekeeping mission being deployed to Macedonia, Spec-4 New's and the other soldiers in his unit were ordered to wear United Nations (U.N.) helmets and armbands. New refused the order, contending that it was an illegal order. New's superiors disagreed. Ultimately, so did the court-martial panel. New was found guilty of disobeying a lawful order and sentenced to a bad-conduct discharge.
The Army Court of Criminal Appeals upheld the conviction, as did the Court of Appeals of the Armed Forces.
It's Too Dangerous
What about an order to participate in a dangerous mission? Can the military legally issue a "suicide mission" order? You bet they can.
In October 2004, the Army announced an investigation of up to 19 members of a platoon from the 343rd Quartermaster Company based in Rock Hill, South Carolina, for refusing to transport supplies in a dangerous area of Iraq.
According to family members, some of the troops thought the mission was "too dangerous" because their vehicles were unarmored (or had little armor), and the route they were scheduled to take is one of the most dangerous in Iraq.
According to reports, these members simply failed to show up for the pre-departure briefing for the mission.
Can they be punished for this? They certainly can.
An order to perform a dangerous mission is lawful because it's not an order to commit a crime. Under current law, and the Manual for Courts-Martial, "An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime."
In fact, if it can be proved that one or more soldiers influenced others to disobey, they may find the crime of Mutiny added to the list of charges, under Article 94. Mutiny carries the death penalty, even in times of peace.
To Obey, or Not to Obey?
So, to obey, or not to obey? It depends on the order. Military members disobey orders at their own risk. They also obey orders at their own risk. An order to commit a crime is unlawful. An order to perform a military duty, no matter how dangerous, is lawful as long as it doesn't involve the commission of a crime.
One of three major cases accusing President Donald Trump of violating the Constitution’s emoluments clause has been brought back from the dead. A panel of federal appellate judges ruled Friday that a group of restaurants in New York City can move forward with their claim that Trump is unfairly using his position as president to convince foreign governments to spend money at his own properties. The news comes amid a new flurry of questions about how Trump may be profiting from his presidency, with details emerging about the Air Force’s use of a Trump-owned Scottish resort to house service members and Vice President Mike Pence’s taxpayer-funded stay at Trump’s Irish resort—apparently at the suggestion of Trump himself.
When Trump took office, he refused to give up ownership or control of his business empire—which includes restaurants and hotels in New York City and Washington, D.C.—though he said he would no longer maintain day-to-day oversight. It’s an unprecedented situation: No other presidents, at least in recent history, have come to office with such an extensive business operation. Critics claimed that Trump was violating the emoluments clause—a section of the Constitution that prohibits the president from accepting payments from foreign governments—because foreign officials almost immediately began spending at the president’s hotels in New York and Washington.
Republican senators are lost and adrift as the impeachment inquiry enters its second month, navigating the grave threat to President Trump largely in the dark, frustrated by the absence of a credible case to defend his conduct and anxious about the historic reckoning that likely awaits them.
Recent days have delivered the most damaging testimony yet about Trump and his advisers commandeering Ukraine policy for the president’s personal political goals, which his allies on Capitol Hill sought to undermine by storming the deposition room and condemning the inquiry as secretive and corrupt.
Those theatrics belie the deepening unease many Republicans now say they feel — particularly those in the Senate who are dreading having to weigh their conscience against their political calculations in deciding whether to convict or acquit Trump should the Democratic-controlled House impeach the president.
In hushed conversations over the past week, GOP senators lamented that the fast-expanding probe is fraying their party, which remains completely in Trump’s grip. They voiced exasperation at the expectation that they defend the president against the troublesome picture that has been painted, with neither convincing arguments from the White House nor confidence that something worse won’t soon be discovered.
“It feels like a horror movie,” said one veteran Republican senator, who spoke on the condition of anonymity to candidly describe the consensus.
The Republican Party’s strategy is being directed almost entirely by the frenzied impulses of Trump, who has exhibited fits of rage over the Democrats’ drive to remove him from office for abuse of power.
“I did nothing wrong,” Trump told reporters Friday. “This is a takedown of the Republican Party.”
Although Sen. Mitt Romney (R-Utah) has been a loud dissenter, he has been speaking for himself as opposed to acting as a frontman for some silent caucus of like-minded Republicans, according to people familiar with the dynamic. Most GOP senators have been taking cues from Majority Leader Mitch McConnell (R-Ky.), whose paramount concern has been maintaining his party’s control of the chamber in next year’s election.
“They’ve decided that they’re going to take it all grudgingly — and privately, perhaps, in disgust — but they’re not going to give up the farm,” said Al Cardenas, former chairman of the American Conservative Union. But, he added, “It’s been piling on, piling on, piling on, and I see defense fatigue on behalf of the Republicans in the Congress.”
Trump and his allies have strained to focus the debate on the process, but Republican officials have struggled to answer for the substance of the startling statements made by the growing list of credible witnesses from the national security and diplomatic realms.
“There’s frustration. It feels to everyone like they’re just digging a hole and making it worse. It just never ends. . . . It’s a total [expletive] show,” said one Republican strategist who has been advising a number of top senators and who, like several others interviewed, spoke on the condition of anonymity to be candid.
McConnell, who has shared related concerns in private conversations with other senators, has been preparing for a possible Senate impeachment trial. And earlier this month he showed a dry PowerPoint presentation to Republican senators explaining how one might unfold.
McConnell remains engaged with Trump but has a mixed view of the president’s advisers, several Republicans said, noting that he misses his productive working relationship with former White House counsel Donald McGahn and is “less enamored” with his successor, Pat Cipollone, according to a McConnell ally. A Senate GOP aide said McConnell and Cipollone have a good working relationship.
As they went about their work at the Capitol this past week, many Senate Republicans were all but mute when reporters asked questions about impeachment — a stark snapshot of a party rattled not only by the House inquiry but also by Trump’s removal of U.S. troops from northern Syria; his decision, later retracted, to host next year’s Group of Seven summit at his Florida golf resort; and his claim that the investigation into him amounted to a “lynching.”
“I’m a juror and I’m comfortable not speaking,” Sen. James E. Risch (R-Idaho) said. Pressed again for comment, he reiterated, “I said I’m comfortable not speaking.”
“I’d be a juror, so I have no comment,” Sen. Lamar Alexander (R-Tenn.) said.
“I don’t need a strategy for impeachment because I may be a juror someday,” Sen. Tim Scott (R-S.C.) said.
Even as they withheld judgment of Trump’s conduct, Republican senators were quick to try to exploit vulnerabilities in the process being run by House Speaker Nancy Pelosi (D-Calif.) and House Intelligence Committee Chairman Adam B. Schiff (D-Calif.).
“To be honest, I don’t follow any of it because that’s not due process,” Sen. Dan Sullivan (R-Alaska) said. “Secret hearings, selective leaks. And that’s due process? In my America, that’s not due process.”
For Republicans, the political conundrum is a problem of their own making, argued William A. Galston, a senior fellow in governance at the Brookings Institution. “They normalized a president whose conduct they are now being asked to judge as so abnormal as to warrant his removal from office,” he said.
“To the extent that they quietly harbor conscientious objections to what the president is doing — or, even more spectacularly, how he’s doing it — they have to weigh the calling of conscience against political considerations,” Galston added. “There’s a reason why ‘Profiles in Courage’ is a very short book. Courage is not the norm. It’s the exception.”
Trump was buoyed last week by a resolution introduced by Sen. Lindsey O. Graham (R-S.C.) condemning the House’s impeachment inquiry as “illegitimate.” But eight Republican senators did not initially sign onto what Graham conceived of as a show of support for the president; five of them later did, leaving only Romney and Sens. Susan Collins of Maine and Lisa Murkowski of Alaska as the holdouts.
Trump was given another lift in Republican enthusiasm Sunday when he announced that Abu Bakr al-Baghdadi, the elusive Islamic State leader, died during an American military operation in Syria. Top Republicans hailed the news as a significant victory in the fight against terrorism and praised Trump.
At the White House last week, counselor to the president Kellyanne Conway chided the media for what she characterized as a rush to judgment about Trump’s conduct. “Let’s take a deep breath and stop pretending we know what’s in somebody else’s heart, mind or soul, and just wait to see where the facts take us,” she told reporters.
Trump had lunch last Thursday with, among others, Alexander, who is retiring next year and is widely seen by his colleagues as driven by his personal integrity and therefore liable to vote against Trump if the case for his removal is strong, according to several lawmakers and GOP aides. Others in the camp of possible Republican breakaways — including Collins and Sen. Patrick J. Toomey (Pa.) — have not engaged much with Trump or his advisers on impeachment, lawmakers and aides said.
Republicans have been grousing in private about the lack of a clear strategy at the White House and their limited grasp of the full set of facts and how officials are prepared to explain them.
“What’s causing the most pause is, what else is out there? What is around the corner?” said a second Republican strategist in regular contact with congressional leaders. “If they say something in defense of the president or against the impeachment inquiry now, will they be pouring cement around their ankles?”
White House acting chief of staff Mick Mulvaney, a former House member, has been a constant target of behind-the-scenes ire from GOP lawmakers. Talk about potential replacements for Mulvaney has become a parlor game on Capitol Hill, where Republicans have noted his inability to constrain Trump or build a political and messaging operation dedicated to countering the impeachment inquiry.
Rep. Mark Meadows (R-N.C.), a conservative hard-liner, has been a fixture at the White House, talking to Trump “more than Mulvaney,” in the estimation of one Trump adviser who was not authorized to speak publicly. “Every time you look over toward the Oval, there is Mark Meadows,” this adviser said.
There are some signs that the White House is moving to do more to deal with the fraying among congressional Republicans, with Trump reaching out to more members by phone and discussions about bringing in a high-profile lawyer to deal directly with impeachment, as well as new communication aides.
The usual chorus of support for Trump from conservative media figures remains active but scattered. Former White House chief strategist Stephen K. Bannon has launched a podcast that he calls an outside “war room” for the president, broadcasting from the basement of his home on Capitol Hill. Meadows appeared on Bannon’s program last week, calling out House Democrats for “information warfare” and said it is “imperative that our team” counters with “real facts.”
But in the biggest blow yet to Trump, acting U.S. ambassador to Ukraine William B. Taylor Jr. testified last week that the president had personally intervened in a quid pro quo for U.S. military aid to be contingent upon Ukrainian investigations into Democrats. Some Republicans have tried to dismiss his account, arguing it is based on secondhand information, but many lawmakers have found it hard to defend Trump in the wake of that testimony.
“The picture coming out of it based on the reporting we’ve seen I would say is not a good one, but I would say also, until we have a process that allows for everybody to see this in full transparency, it’s pretty hard to draw any hard-and-fast conclusions,” Sen. John Thune (S.D.), the No. 2 Senate Republican, told reporters.
Sen. Roy Blunt (R-Mo.), another member of leadership, said, “To some extent, we need to be thoughtful about waiting for the House and whatever conclusions they reach. For us to express concerns about process is totally appropriate. But reaching conclusions based on anybody’s select information at this point probably isn’t a helpful place for us to be.”
The GOP majority is in play in 2020, with Collins, Joni Ernst (Iowa), Cory Gardner (Colo.), Martha McSally (Ariz.) and Thom Tillis (N.C.) each facing tough campaigns and grappling with polls in their states showing independent voters souring on Trump and open to impeachment.
“At some point, McConnell is going to have to perform triage to save the majority,” said Rick Wilson, a longtime GOP consultant and Trump critic. “How the Senate Republicans handle everything is all going to come down to how threatened Mitch feels and how worried he is about losing Colorado, North Carolina and a few others states. And if Trump’s numbers keep dropping, that decision is going to come sooner than later for him.”
For now, Trump’s near-absolute control over his party’s base makes it difficult for Republicans to do anything but cheer him or be uneasy in the shadows, even though polls show that a majority of Americans disapprove of his job performance.
“Everybody in their heart is nervous,” said former senator Rick Santorum, a Republican from Pennsylvania. “During the Clinton impeachment, he tried to endear himself to the public as much as possible. But this is the opposite. The base loves him but the president isn’t doing anything to win [other] people over, and that troubles Republicans who have to win support next year from people beyond the base.”
A State Department official told House impeachment investigators on Friday that he overheard Gordon Sondland, the U.S. ambassador to the European Union, telling President Donald Trump that Ukrainian President Volodymyr Zelensky would do “anything you ask him to” — including publicly announcing an investigation targeting Trump’s political rivals.
“[Sondland] went on to state that President Zelensky ‘loves your ass,’” David Holmes told investigators, according to two sources familiar with his opening statement.
Holmes, the political counselor at the U.S. embassy in Kyiv, said he then heard Trump ask, “So, he’s gonna do the investigation?” Sondland then replied: “He’s gonna do it.”
Holmes’ account corroborates testimony this week by William Taylor, the top American diplomat in the eastern European country, who relayed details of the July 26 episode to lawmakers during the first public impeachment hearing on Wednesday.
Holmes’ account also represents another data point connecting Trump directly to what Democrats have argued is a scheme to withhold critical Ukrainian military aid and refuse a White House meeting between the two presidents until Ukraine committed to the investigations Trump was seeking — namely, one targeting former Vice President Joe Biden.
Sondland was at a restaurant in the Ukrainian capital when he placed the call to Trump, sitting at an outdoor table with Holmes, another embassy official, and an aide to Sondland. Holmes told investigators that he could clearly hear what Trump and Sondland were saying, and has a “clear recollection” of it despite not having taken notes.
“While Ambassador Sondland's phone was not on speakerphone, I could hear the president’s voice through the earpiece of the phone,” Holmes said in his opening statement. “The president’s voice was very loud and recognizable, and Ambassador Sondland held the phone away from his ear for a period of time, presumably because of the loud volume.”
Holmes’ testimony also backs up Taylor’s testimony about Trump’s personal views on Ukraine. Holmes said he asked Sondland “if it was true that the president did not ‘give a ****’ about Ukraine.” According to Holmes, Sondland agreed, and said Trump only cares about “‘big stuff’ that benefits the president, like the ‘Biden investigation’ that [Rudy] Giuliani was pushing.”
Trump on Wednesday denied that the call with Sondland occurred, saying he knows “nothing about that.”
The Intelligence Committee issued a subpoena to Holmes on Friday, according to an official working on the impeachment inquiry. The official said the State Department sought to block him from appearing for his scheduled deposition.
CNN first reported on Holmes’ opening statement. The phone call in question occurred just a day after Trump spoke by phone with Zelensky, on July 25. That conversation is central to the impeachment inquiry because, according to a record released by the White House, Trump appeared to ask Zelensky to investigate Biden and his son, Hunter, who sat on the board of Burisma, a Ukrainian energy company.
Sondland is slated to testify in public before the House Intelligence Committee on Wednesday as part of House Democrats’ impeachment inquiry into the president. His lawyer previously told POLITICO that Sondland planned to address the phone call — which was first revealed by Taylor — when he appears for testimony next week.
Taylor told investigators that Holmes relayed to him the details of the conversation between Trump and Sondland. He said Trump asked Sondland about “the investigations,” and Sondland replied that the Ukrainians were ready to move forward. According to Taylor, Holmes asked Sondland what the president thinks of Ukraine, to which Sondland “responded that President Trump cares more about the investigations of Biden.”
Holmes also told investigators that he was present for a video conference on July 18 during which an official from the Office of Management and Budget announced that acting White House chief of staff Mick Mulvaney had placed a hold on critical military assistance to Ukraine at the president’s direction. His account confirms that of several other witnesses who have testified — including officials from the State Department, Pentagon and National Security Council.
Holmes said he and his colleagues at the embassy tried to figure out why the hold had been placed, but to no avail. He added that NSC officials “could not determine the cause of the hold or how to lift it.”