The Department of Justice and U.S. prosecutors should be allowed to take the lead in any prosecutions of military personnel involved even though there is shared jurisdiction. We believe prosecution for serious federal crimes such as seditious conspiracy and insurrection, regardless of the offender’s military affiliation, should be tried in civilian federal court. With civilian institutions the direct victim of last week’s insurrection, now is the time to emphasize that federal criminal processes work—such action would constitute both actual and poetic justice.
But given the strong possibility that military leaders will desire to handle actions against military members, it is critical that the secretary of defense move now to establish a CDA with one general or admiral, supported by a senior military lawyer, tasked with deciding what disciplinary or criminal action, if any, is to be taken against active-duty and regular component retirees. (Aside: there are serious constitutional issues raised by court-martialing retirees, as a federal judge recently concluded.)