Vermont Guard Leadership Candidates Pledge Resignations Over Unlawful Orders—But Military Law Says That’s Not an Option

Vermont is the only state where lawmakers select their top military office, most of whom are civilians with limited military experience.

Vermont stands alone among the 50 states in how it selects its top military officer. While governors appoint the Adjutant General in every other state, Vermont’s legislature elects the position through a joint secret ballot of the House and Senate every two years.

This unusual process transforms what is typically an administrative military appointment into a political election, requiring candidates to campaign among 180 lawmakers—most of whom are civilians with limited military experience.

That political dynamic took center stage this week when both candidates vying to lead the Vermont National Guard made a pledge that, according to military law experts and the Uniform Code of Military Justice, they cannot actually fulfill.

The Resignation Pledge

During a January 15 joint hearing of the House and Senate Government Operations committees, Brigadier General Henry “Hank” Harder and Colonel Roger “Brent” Zeigler both stated they would resign their posts rather than carry out an unlawful order from state or federal superiors.

The statements came as Vermont’s Air National Guard 158th Fighter Wing had been deployed to “Operation Southern Spear,” the federal military campaign in Venezuela that drew opposition from Vermont’s congressional delegation, including Senator Peter Welch and Representative Becca Balint, who questioned the operation’s legality under the War Powers Resolution. The Vermont Guard has since returned home from that deployment.

Why Resignation Isn’t Actually an Option

The candidates’ pledge contains a fundamental legal problem: under military law, resignation is not a permissible response to an unlawful order—especially during an active mobilization.

The Stop-Loss Reality

Under 10 U.S.C. § 12305, the President can suspend any law relating to the retirement or separation of military members during a national emergency or mobilization. Outgoing Adjutant General Gregory Knight has described the Venezuela operation as an “involuntary federal mobilization” of Vermont Guard units, meaning Stop-Loss policies were likely in effect.

Under Stop-Loss, if either candidate attempted to resign after receiving a deployment order, their resignation would likely be rejected by federal authorities. They would then face only two choices: obey the order or refuse it and face court-martial. The resignation option effectively disappears.

The Duty to Refuse, Not Resign

The Uniform Code of Military Justice (UCMJ) requires obedience only to lawful orders. Articles 90 and 92 of the UCMJ specifically criminalize disobedience of “lawful” commands, creating an implicit duty to disobey unlawful ones.

Military legal precedent, established at Nuremberg and refined in cases like United States v. Keenan, holds that an order is unlawful if it directs the commission of a crime and if a person of “ordinary sense and understanding” would recognize it as illegal. Examples include orders to target civilians, commit torture, or execute prisoners.

The critical distinction: when an officer faces a manifestly unlawful order—such as a war crime—their legal and ethical duty is to refuse the order and prevent its execution, not to resign and allow a replacement commander to potentially carry it out. Military legal scholars note that officers “in positions to resist ought to stay in their positions and... resist, not retire or resign.”

By resigning, an officer removes themselves from the chain of command, potentially leaving subordinates vulnerable to complicity in illegal acts. The UCMJ provides no provision allowing resignation as a substitute for refusing unlawful orders.

The “Lawful but Awful” Problem

The candidates’ statements also conflate two very different scenarios, according to military law:

Manifestly unlawful orders violate the Law of Armed Conflict, the Constitution, or the UCMJ—such as “shoot prisoners” or “bomb that hospital.” The proper response: refuse and report. Resignation would constitute abandonment of duty.

Lawful but unpopular orders are legal under current jurisprudence but ethically contentious or politically controversial—such as deployment to an undeclared war. The proper response: execute the order while voicing objections, or attempt to resign (if administratively possible).

The candidates used the specific term “unlawful order” in their testimony. If they meant war crimes, resignation is an inadequate response. If they meant controversial deployments like Operation Southern Spear, they’re using “unlawful” as a euphemism for “politically unpopular with the Vermont legislature.”

The Constitutional Context: Defend the Guard

The candidates’ statements come as Vermont lawmakers consider H.355, the “Vermont Defend the Guard Act,” which would prohibit the governor from releasing National Guard units for federal active duty combat unless Congress has passed an official declaration of war.

This legislation sets up a potential constitutional collision. The Supreme Court ruled in Perpich v. Department of Defense (1990) that Congress can authorize the President to call up the Guard without gubernatorial consent, stripping states of veto power over federal deployments.

If H.355 passes, Vermont’s next Adjutant General could face contradictory mandates: state law saying “don’t deploy” and federal law ordering deployment. In that scenario, the resignation pledge becomes a strategy to avoid being the person who must choose which sovereign to disobey—and whether to face court-martial by federal authorities or potential impeachment by the state.

The Candidates

Brigadier General Henry “Hank” Harder currently serves as Deputy Adjutant General. An F-16 pilot with over 3,000 flight hours and four combat tours in Iraq, Harder’s platform emphasizes “seamless transition,” recruitment, and veteran care. His close ties to the F-35 mission that was deployed to Venezuela make him a candidate who could face immediate pressure from controversial federal orders.

Colonel Roger “Brent” Zeigler serves as Director of Logistical Planning Operations in the Army National Guard and heads the Vermont National Guard Charitable Foundation. His platform focuses on mental health, financial aid for military families, and “empowering guard members.” As an Army officer, he’s further removed from the F-35 controversy.

Outgoing Major General Gregory Knight has notably declined to endorse either candidate. In his farewell testimony, Knight warned that the Defend the Guard Act would “fundamentally undermine” the Guard’s force structure and federal funding.

What Happens Next

The Vermont General Assembly will vote on the Adjutant General position in February through a joint secret ballot. The winner will navigate the aftermath of the controversial Venezuela deployment while facing legislative consideration of H.355.

The constitutional tension between state sovereignty and federal military authority will likely intensify regardless of which candidate wins. Both have signaled through their resignation pledges that they view themselves caught between competing loyalties—to the legislature that elects them and to the federal chain of command that can mobilize their units.

The question lawmakers must resolve: whether the next Adjutant General will attempt to resign and step aside when orders conflict with Vermont’s political preferences, or whether they will remain in command and use their authority to refuse orders they believe violate military law—understanding that under UCMJ, only the latter is the legally prescribed course of action.

The legislature’s vote will effectively determine how Vermont navigates the intersection of state politics and federal military power for the next two years.