Monday, January 11, 2021

Courts-martial for rallygoers?

Captain (CPT) Emily Rainey is an active-duty Army officer under investigation for participating in the January 6 rally. Her level of involvement in the activities that day is currently unclear. While reports indicate she led a group of people from North Carolina to Washington D.C., the article does not clarify whether she entered the Capitol building or engaged in any of the mayhem.

 For the sake of this article, let us assume after the investigation concludes, CID doesn’t uncover evidence CPT Rainey trespassed in the Capitol or otherwise engaged in clearly illegal conduct—such as violence or destruction of property—what then? What punishment, if any, could CPT Rainey receive?

As CPT Rainey is aware, given she wrote an article about it for Special Operations Forces Report (SOFRP), servicemember’s don’t surrender all First Amendment rights. The ban against political activities, generally speaking, applies to participating in partisan activities while wearing the uniform. (If you want a more detailed explanation of the do’s and don’ts for active-duty personnel, I suggest reading CPT Rainey’s excellent article.)

Thus, there’s an interesting legal question for her and other service-members—is there liability merely for showing up to the rally? Would a court-martial convict an officer under Article 133, UCMJ, for conduct unbecoming; or under Article 134, for engaging in service-discrediting activity, or conduct prejudicial to good order and discipline? And if not a court-martial, is mere participation at the rally grounds for separation or a letter of reprimand? Or would all of these actions violate the servicemembers’ constitutional rights to freely associate and speak?

While I have an opinion about the constitutionality or wisdom of pursuing such disciplinary actions in those circumstances, I won't share it here. What I do predict, though, is that all rally-goers need to be prepared for adverse action regardless of their level of participation. And I expect, given the publicity of the events, there will be consequences for many of the participants, even absent clear proof of a criminal act. So there will be litigation on this issue, with no clear resolution for a few years.


  1. First Amendment issue, plain and simple. Stretching her involvement, if benign as described, would be an awful outcome for both the military and the First Amendment. I oppose everything these buttwipes did last Wednesday, but I’m an absolutist on First Amendment. It’s at the top of the list for why I served.

    1. So apparently CPT Rainey had already received a letter of reprimand for her involvement in a prior demonstration: These cases will be factually dependent, but if she did more than merely participate in front of the Capitol, her command likely will be more agitated than if this was her first incident.


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