Tuesday, June 9, 2020

Speak no evil?

General James N. Mattis
U.S. Marine Corps (Ret)
Article 88 of the Uniform Code of Military Justice criminalizes officers' contemptuous speech about, among others, the President. Article 2(a)(4) in turn subjects to the UCMJ retired regulars who are entitled to pay. (Never mind whether Art. 2(a)(4) is constitutional. Disclosure: the Editor is co-counsel in a pending case that challenges the exercise of court-martial jurisdiction over an enlisted retiree.) A number of retired senior officers have spoken out recently about President Donald J. Trump, using harsh words, some of which fall within Art. 88. Against that backdrop, consider this tough National Review Online essay by Victor Hanson Davis. He writes:
In such a polarized climate, it seems reasonable to wish that even well-meaning retired generals would at least [1] avoid incendiary comparisons of the president to America’s former Nazi or Fascist enemies.

They could [2] eschew factual inaccuracies.

They might [3] resist veiled hints about resisting or bypassing supposed alleged traitors in the White House.

And they should not [4] coordinate their efforts in an ominous manner that could undermine the often tenuous civilian and military balance at the core of our constitutional system.

But that modicum of restraint was apparently asking too much in these times of bitter factionalism, rank partisanship, and social chaos.
(Bracketed numbering added.) Which of the four numbered points is well-taken? Any? All?


  1. Gene, that's so interesting. In writing my latest post for this site, I started thinking about Article 88's applicability to retired members because of the recent comments from retired military. Hopefully this issue is never litigated, but seems like there's a better 1st Amendment defense for retired military than active for such a prosecution.

    1. As I recall, John Kester, in his definitive Harv. L. Rev. article on Art. 88, UCMJ, mentions a single case of a retiree who got in trouble for badmouthing FDR before we entered WWII. I think it never went to trial. Who wants to create a martyr, right?


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