The decision will no doubt interest American lawyers for its discussion of due process under the Fifth Amendment. However, it also deserves attention from anyone with an academic or professional interest in military law because of the analysis by Judge David Tatel, speaking for a unanimous court, of an issue that is central to the “Devil’s Article”, Conduct to the Prejudice of Good Order and Discipline: the constitutional requirement in U.S. law that laws must give fair notice of conduct that is forbidden or required. Military law scholars in Canada and the United Kingdom should give Karem v. Trump particularly close attention since leading appellate decisions in both countries have held that on a charge of Conduct to the Prejudice of Good Order and Discipline the prosecution is not required to prove that the accused violated any known military standard of conduct.
The case arose from an incident at the Social Media Summit hosted by President Trump at the White House in July, 2019. Various conservative social media personalities, including the President’s former advisor, Sebastian Gorka, were invited. Following the event, the President delivered prepared remarks in the Rose Garden. The events that followed were captured on video and were not the subject of serious dispute in the litigation. The White House Press corps, including Brian Karem, a correspondent for Playboy, were seated in a roped off section, separate from the attendees. Mr. Karem was the holder of a “hard pass” that allowed him on demand access to the White House. Following his remarks, the President walked back towards the White House. Mr. Karem shouted a question, which the President ignored and continued into the White House. Several of the attendees yelled remarks at Mr. Karem, such as “He talked to us, the real news,” and “Don’t be sad, don’t be sad.” Mr. Karem gestured at the attendees and said “This is a group eager for demonic possession.” Several people laughed, but Mr. Gorka did not find the remark amusing. He turned around in his chair and yelled “And you’re a journalist, right”, making air quotes with his hands. Mr. Karem replied “Hey come on over here and talk to me, brother, or we can go outside and have a long conversation,” gesturing with his right thumb over his shoulder. Gorka then walked briskly toward Karem, shouting, “Are you threatening me now in the White House? In the Rose Garden? You are threatening me in the Rose Garden?” With the two men now standing face to face, Karem, his voice lowered, stated, “I said I’d be happy to talk to you.” Gorka, still yelling, responded, “You are a punk! You’re not a journalist! You’re a punk!” Gorka then walked away, and, as he did, Karem twice shouted in his direction, “Go home,” and then, “Hey Gorka, get a job!” Several minutes after this initial incident, Karem again encountered Gorka, this time in the White House Palm Room. Placing his hand on Gorka’s arm, Karem tried to explain that, in making his earlier comment, he had only meant that he wanted to talk. Gorka disagreed, prompting Karem to repeat, “I said ‘talk.’” As staffers began ushering press out of the Palm Room, Gorka repeatedly told Karem, “You’re done.” Before walking away, Karem tried to shake Gorka’s hand, but Gorka refused.
Three weeks later, then Press Secretary Stephanie Grisham wrote to Mr. Karem to inform him that she had made a preliminary decision to suspend his White House credentials for thirty days. Mr. Karem replied through counsel, disputing her version of events and suggesting that suspension of the Press pass would be unconstitutional. Ms. Grisham replied, confirming her final decision to suspend Mr. Karem’s Press pass. She wrote that the “demonic possession” remark was “inappropriate and unprofessional” even if Mr. Karem had meant it as a light-hearted exchange. Further, whatever Mr. Karem’s subjective intent, his “go outside” remark and his gesture created the impression for a reasonable observer that he was proposing a physical confrontation. She also found that Mr. Karem aggressively confronted Mr. Gorka in the Palm Room and refused repeated directions to leave. Mr.Karem then filed suit in the District Court to enjoin Mr. Trump and Ms. Grisham from suspending his press pass. The district court found Karem’s Fifth Amendment due process claim likely to succeed on the merits and preliminarily enjoined the suspension.
The history of press passes at the White House was of central importance in the Court of Appeals decision. The White House had been issuing press passes to Washington-based journalists for decades, provided that they had a pass for the House and Senate Press Galleries and passed a Secret Service background check. For more than fifty years no reporter’s pass had been revoked, or even briefly suspended, even though reporters had rudely interrupted the President, berated press secretaries and engaged in pushing matches over places in the Press Room. No written direction prescribing standards of conduct was ever issued to the White House press corps. That laissez-faire attitude, as Judge Tatel described it, appears to have changed with the election of President Trump.
At a Presidential press conference on 29 November 2018, journalist Jim Acosta asked several questions which the President refused to answer. Mr. Acosta then failed to yield the floor immediately. Sarah Sanders, the presidential Press Secretary at the time, revoked Mr. Acosta’s hard pass the same, deeming his conduct “unprofessional”. The District Court issued a preliminary injunction, holding that Mr. Acosta was likely to succeed on the merits of his due process claim. Rather than appealing, the White House issued a letter to Mr. Acosta, purporting to convert into rules “widely understood practices”. The letter stated various rules for the conduct of future press conferences and warned that violation of the rules could result in the suspension or revocation of the journalist’s hard pass. Judge Tatel found it significant that the “Acosta letter” expressly declined to issue rules for the “open”, i.e. non-Press Room, areas of the White House, “in the hope that professional journalistic norms will suffice to regulate conduct in those places.”
Judge Tatel affirmed the District Court injunction, although limiting its application to the Press Secretary. He began and ended with Karem’s final argument, namely that he had a constitutionally protected right to fair notice of the conduct that could result in a penalty, and of the severity of penalty that misconduct might attract. Judge Tatel relied particularly on the statement of the U.S. Supreme Court in FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012): “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” Further, the Supreme Court had said in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996) that elementary notions of fairness ““dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that [the government] may impose.”
The White House had failed this elementary test of procedural fairness. The “Acosta letter”, in so far as it prescribed standards of conduct, specifically excluded events occurring outside the Press Room. So-called “professional norms” were of no assistance because the White House had never disciplined a single journalist, even though some had indulged in conduct that was at least as serious Mr. Karem’s supposed misconduct. As Judge Tatel put it, “Karem’s behavior was not so outrageous as to bring into fair contemplation the unprecedented sanction visited on him.”
The decision in Karem v. Trump calls to mind advice I received from senior counsel when I was beginning my career as a military lawyer, namely that a good defence to a charge of Conduct to the Prejudice of Good Order and Discipline is that the accused met the low standard of discipline that prevailed in his unit. In other words, if the commander has consistently tolerated a certain level of conduct, the soldier has committed no offence if he meets that standard. Notice of the applicable standard of conduct is not only a matter of procedural fairness, as it was in the Karem case, but is essential to the substance of the offence itself.
The American general article, article 134 of the Uniform Code of Military Justice, which includes the offence of Conduct to the Prejudice of Good Order and Discipline, has been roundly criticized as unconstitutionally vague. Nevertheless, it rests on solid constitutional footing. The leading decision, Parker v. Levy, 417 U.S. 733 (1974), held that the prejudicial conduct clause gives the accused sufficient notice of the prohibited conduct because the decisions of the United States Court of Military Appeals, the Manual for Courts-Martial, as well “less formalized custom and usage”, had narrowed the reach of the literal language of the article, so that service members are aware of the boundaries of acceptable conduct. Justice Blackmun wrote a fierce dissenting opinion, but not a single Justice in that case suggested that a soldier could be convicted under article 134 without notice of the standard of conduct that he was obliged to meet.
Not so, the Court Martial Appeal Court of Canada. In R. v. Corporal Golzari 2017 CMAC 3, the C.M.A.C. overturned an acquittal under s. 129 of the National Defence Act, which creates the offence of Conduct to the Prejudice of Good Order and Discipline in Canadian military law. (Full disclosure: I was defence counsel for Corporal Golzari at trial.) The Court stated that the prosecution is not required “to prove the additional element of a standard of conduct required of the accused”. This dictum was adopted in the C.M.A.C.’s most recent leading decision on Conduct to the Prejudice of Good Order and Discipline, R. v. Captain Bannister 2019 CMAC 2, which was mentioned in Global Military Justice Reform on 9 January 2020.
The C.M.A.C. was following in the footsteps of the U.K. Courts Martial Appeal Court, which, in R. v. Major Robert Armstrong, [2012] EWCA Crim 83, held that “The issue of whether the conduct is to the prejudice of good order and military discipline does not depend upon the knowledge or intention of the defendant. The test is an objective one.” The court in Armstrong adopted the ruling in an earlier decision, R. v. Dodman, [1998] 2 Cr. App. R. 338, in which an RAF Squadron Leader had been convicted of two offences of conduct to the prejudice of good order and Air Force discipline, contrary to s. 69 of the Air Force Act. The Courts Martial Appeal Court stated in Dodman that “it is not right or useful to introduce an additional concept of “wrongfulness” in the sense of being contrary to “accepted Air Force standards”.
Thus, the Court Martial Appeal Courts in both Canada and the U.K. appear to have sanctioned the notion that on a charge of Conduct to the Prejudice of Good Order and Discipline it is not necessary to prove that the accused had ever been put on notice of the standard of conduct required of her. The result, until these courts reconsider or clarify their decisions, is that a Canadian or British soldier charged with this offence, who faces the possibility of imprisonment and professional ruin, is entitled to less procedural fairness that a reporter whose White House press pass is suspended for thirty days.
An interesting article.
ReplyDeleteIn UK, in addition to the case of Armstrong, the matter was addressed in the earlier decision of the ECtHR in Ainsworth-v- United Kingdom, (1998). A Royal Marines lieutenant Troop Commander at the Commando training centre, was charged with two counts of conduct to the prejudice of good order and military discipline contrary to section 69 of the Army Act 1955 (now s.19 AFA 2006), alleging neglecting to supervise adequately, as his duty required him to do, the Troop Party by failing to ensure that proper safeguards were imposed to prevent consumption of alcohol by under-age recruits in his troop and by failing to ensure that under-age recruits in his troop did not at that function consume alcohol contrary to the law. One of the under-age recruits had died from an excessive intake of alcohol at the Troop Party held in June 1992. The principal issues argued:
1. "Findlay" arguments over article 6 compatibility;
2. Challenge to the unforeseeable nature of the conviction under section 69 of the Army Act 1955 invoking Article 6 paras. 2 and 3(a) and Article 7.
HELD:
1. Ground 1 was admissible, on the basis of Findlay and Coyne;
2. The court said
a. Given the potential sentence under section 69 of the 1955 Act (two years imprisonment) and the nature of the charges against the applicant, the applicant was found guilty of a "criminal offence" within the meaning of Article 7;
b. The criminal offence in question must be clearly defined in the law and that this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable. Section 69 of the 1955 Act, read in the light of the detailed and precise provisions of the Standing Orders, satisfied the requirement of foreseeability under Article 7 of the Convention.