Friday, January 22, 2021

Is Donald Trump Unfit to Be Commander-in-Chief? A Military Justice Perspective

Brian L. Cox

Because the U.S. House of Representatives initially drew on the 25th Amendment as a bargaining chip to defuse the possibility of initiating a second impeachment proceeding against President Trump, much of the pre-impeachment discussion was focused on whether Donald Trump is now “unable to discharge the powers and duties of his office.” Whether it would have been a proper use of the 25th Amendment – to remove a president who seems “unhinged” but not necessarily incapacitated – is an open question.

With the article of impeachment set to be transmitted to the Senate on Monday and oral arguments scheduled to begin in just over two weeks, the determinative factor with the conviction vote will likely be whether it is worth it politically to “remove” a president from office after the presidential term has expired. While I agree with the analysis offered on Just Security by Michael Gerhardt (who, incidentally, was my constitutional law professor during law school) indicating that the Constitution does not prohibit a post-term removal, the proceeding certainly is not without political risk. The biggest potential upside for Democrats (and even Republicans who are disenchanted with President Trump) is the constitutional penalty that can be imposed: “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

Assuming Senate Democrats will vote in favor of removal, the political case for Republican senators doing the same will essentially come down to a combination of considerations reflected in the 25th Amendment and Article I, Section 3 of the Constitution. Each vote in favor of “removal” would essentially be a political determination that President Trump, by his conduct prior to the Capitol siege, has demonstrated he is unfit to be hold an office of public trust and, therefore, he should be disqualified from seeking public office again in the future.

With Senator Mitch McConnell reportedly observing that the conviction decision will be a “vote of consciousness” – and even the Joint Chiefs officially, though tactfully, distancing the military from the commander-in-chief’s election denialism – there may be political space for Senate Republicans to cast an affirmative vote to convict the president. One significant factor for Republican senators to consider – on behalf of the constituents they represent – is whether President Trump has demonstrated he is unfit to serve as the commander-in-chief of the armed forces. This is, after all, one of the central constitutional responsibilities of the president of the United States.

Assessing Potential Violations of the UCMJ

While the president is not directly subject to the Uniform Code of Military Justice (pursuant to Article 2 of the UCMJ and by operation of Art. I, Sec. 8 and Art. II, Sec. 2  of the Constitution), an assessment of whether President Trump violated any of the punitive articles of the military code can inform the political discussion of whether he should be disqualified from seeking another term as commander-in-chief in the future. In that discussion, it is appropriate to consider what the outcome would be if President Trump were subject to the UCMJ.

As federal law describes, “All commanding officers and others in authority” must “show in themselves a good example of virtue, honor, patriotism, and subordination.” If it is determined that President Trump committed serious violations of the UCMJ during the course of the Capitol siege, voting to disqualify him from serving as the commander-in-chief of the armed forces in the future should be politically tenable – even for Republicans.

As a former military prosecutor, there are a number of serious UCMJ violations I would suggest if Donald Trump were a member of the military and I were advising a military commander with the authority to initiate court-martial proceedings against him. The most serious potential charge, sedition, carries the possibility of the death penalty.

With the stage set for the theoretical application of the UCMJ for the purpose of informing the political decision involving convicting the president in the pending impeachment proceeding, the remainder of this post outlines the factors I would consider relevant if advising the hypothetical military commander in making a charging decision. Before describing the application of the relevant UCMJ violations, I turn first to briefly address the factual predicate that supports the potential violations.

Describing the Factual Basis for the Potential UCMJ Violations

The basic factual background regarding then-President Trump’s activities prior to the Capitol siege is a matter that has been discussed in public discourse at length and therefore does not require extensive recapitulation here. The authors of this Just Security page do a truly impressive job of collecting “a detailed timeline of President Donald Trump’s statements and actions relevant to the case that he incited the attack on the Capitol on Jan. 6, 2021.”

While the entire timeline is generally relevant to the present inquiry, for this post I will pick up with the tweet from December 19th in which President Trump reveals, “Big protest in D.C. on January 6th. Be there, will be wild!” After a couple of tweets encouraging followers to come to DC, a retweet on January 3rd provides the specific place for protesters to meet on the 6th.

Days later at the “Save America Rally” on January 6th, Rudy Giuliani suggested to the crowd, “let’s have trial by combat.” While President Trump did not specifically endorse this characterization, the president did say during his remarks that “Rudy, you did a great job” and that Giuliani has “got guts, unlike a lot of people in the Republican Party…he fights, he fights.”

Later in his remarks, President Trump asserts that if Vice President Pence doesn’t demonstrate the “courage” to send the election results back to the states to recertify, America will be “stuck with a president who lost the election by a lot, and we have to live with that for four more years.” He follows this remark with, “We're just not going to let that happen.”

Regarding the outlook for Congress, President Trump suggested that “in a year from now, you're going to start working on Congress and we've got to get rid of the weak congresspeople, the ones that aren't any good, the Liz Cheney's of the world. We've got to get rid of them.” As a call to action, the president told the crowd that “we're going to walk down [to the Capitol] and I'll be there with you.” He then told his supports that “you'll never take back our country with weakness. You have to show strength and you have to be strong.”

Any number of President Trump’s activities involving election denialism in general could be relevant, but the brief recap above is sufficient for present purposes of evaluating potential violations related to the Capitol siege if he were in fact subject to the UCMJ and facing the prospect of trial by court-martial as a military service member. In the sections that follow, I evaluate the most relevant articles of the UCMJ to consider whether President Trump likely violated these in relation to the Capitol siege.

For each, I draw from the 2019 Manual for Courts-Martial (MCM) to provide the relevant text of each article of the UCMJ, the elements of each offense, any relevant explanation from the MCM, the maximum punishment, and a brief analysis of each offense. The offenses considered, in the order reflected below, are: contempt toward officials, riot or breach of peace (two offenses in the same UCMJ article), sedition, and the separate offense of soliciting the commission of such offenses. Following the analysis of each article, I close this post with some concluding reflections.

Contempt Toward Officials, Article 88

Text from the UCMJ: Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

 - Elements: (1) That the accused was a commissioned officer of the United States armed forces; (2) That the accused used certain words against an official or legislature named in the article; (3) That by an act of the accused these words came to the knowledge of a person other than the accused; and (4) That the words used were contemptuous, either in themselves or by virtue of the circumstances under which they were used.

 - Explanation: If not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged as a violation of the article.

 - Maximum punishment: Dismissal, forfeiture of all pay and allowances, and confinement for 1 year.

 - My analysis: The purpose of this article is to prevent commissioned officers from being contemptuous of, and therefore appearing insubordinate to, selected governmental officials or institutions. For any military member other than the president, comments such as “we’ve got to get rid of the weak congresspeople” would qualify for all four elements of the offense. As the constitutionally appointed commander-in-chief, President Trump is, of course, not a commissioned officer of the U.S. armed forces. However, for any commissioned officer, a charge of “contempt toward officials” would almost certainly result in conviction based on the relevant facts. While the UCMJ does not differentiate between felony and misdemeanor offenses, the usual dividing line is whether the offense carries a maximum period of confinement of one year or more. As such, a conviction here would qualify as a “felony” and potentially subject the Accused to a “dismissal” (the equivalent of a dishonorable discharge for commissioned officers).

 Riot or Breach of Peace, Article 116

Text of UCMJ: Any person subject to this chapter who causes or participates in any riot or breach of the peace shall be punished as a court-martial may direct.

 For the present analysis, I start with the less serious of the two – breach of peace – before considering riot.

 - Elements of breach of peace: (a) That the accused caused or participated in a certain act of a violent or turbulent nature; and (b) That the peace was thereby unlawfully disturbed

 - Explanation for breach of peace: The acts or conduct contemplated by this article are those which disturb the public tranquility or impinge upon the peace and good order to which the community is entitled. […] Loud speech and unruly conduct may also constitute a breach of the peace by the speaker. A speaker may also be guilty of causing a breach of the peace if the speaker uses language which can reasonably be expected to produce a violent or turbulent response and a breach of the peace results. The fact that the words are true or used under provocation is not a defense, nor is tumultuous conduct excusable because incited by others.

 - Elements of riot: (a) That the accused was a member of an assembly of three or more persons; (b) That the accused and at least two other members of this group mutually intended to assist one another against anyone who might oppose them in doing an act for some private purpose; (c) That the group or some of its members, in furtherance of such purpose, unlawfully committed a tumultuous disturbance of the peace in a violent or turbulent manner; and (d) That these acts terrorized the public in general in that they caused or were intended to cause public alarm or terror.

 - Explanation for riot: After briefly expanding the discussion of the elements of the offense, the explanation for riot continues: The gravamen of the offense of riot is terrorization of the public. It is immaterial whether the act intended was lawful. Furthermore, it is not necessary that the common purpose be determined before the assembly. It is sufficient if the assembly begins to execute in a tumultuous manner a common purpose formed after it assembled.

 Maximum punishments:

Breach of peace. Confinement for 6 months and forfeiture of two-thirds pay per month for 6 months.

Riot: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.

 - My analysis: There is no reasonable doubt that the factual record meets the elements for a violation of breach of peace. For riot, the only element that would be in question would be (b), specifically whether President Trump “intended to assist” members of the group that engaged in the Capitol siege in their assault against “anyone who might oppose them.” Based on the known facts, reasonable arguments could be made both ways. While element (b) of riot would be a close call, incorporating solicitation to commit riot (considered below) would be more likely to result in conviction. As such, if I were a trial counsel (military prosecutor) advising our theoretical commander in this case, I would suggest charging riot and solicitation to commit the offense of riot in the alternative.

Sedition, Article 94

Text of UCMJ (excluding the connected offense of mutiny, which is not relevant here): A person who is found guilty of … sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.”

 Elements: (a) That the accused created revolt, violence, or disturbance against lawful civil authority; (b) That the accused acted in concert with another person or persons; and (c) That the accused did so with the intent to cause the overthrow or destruction of that authority.

 - Explanation: Sedition requires a concert of action in resistance to civil authority. This differs from mutiny by creating violence or disturbance.

 Maximum punishment: Death or such other punishment as a court-martial may direct.

 - My analysis: The relevant factual background meets the first two elements for sedition without a doubt. The contentious issue would be element (c), specifically whether (then) President Trump intended to cause the overthrow or destruction of Congress (as the “lawful civil authority” from element (a)). Intent is often the most difficult element to prove at trial, but there is a high likelihood that a panel (a military jury) would conclude that President Trump’s rhetoric demonstrates the requisite intent. Upon conviction and based on the particularly severe damage to life, property, and the integrity of the functioning of Congress that resulted from the Capitol siege, a sentence of death would be entirely plausible.

Soliciting offenses, Article 82

The UCMJ treats a service member who “solicits or advises another” person to commit a violation of the UCMJ in the same manner as one who actually commits the offense – though for most offenses the maximum penalty can be no more than 10 years of imprisonment even if the “base” offense allows a higher penalty. The offense of sedition, along with three other offenses that are not relevant to present inquiry (desertion, mutiny, or misbehavior before the enemy) are treated separately from all the other UCMJ offenses and are not capped at 10 years.

A commander would not need to charge contempt toward officials as a solicitation charge. If contempt toward officials applied in this theoretical scenario, President Trump’s own actions meet the elements without “soliciting or advising” another person to commit the offense. The same is true for breach of peace, so solicitation would not need to be charged for this offense, either.

This leaves riot and sedition to consider as charges filed in the alternative to the “base” offenses for which Donald Trump would be considered the principal actor. For this analysis, I consider the less severe of the two – riot – first before addressing sedition.

 Solicitation to commit riot

 - Standard solicitation text: Any person subject to the Code “who solicits or advises another to commit an offense” of the UCMJ “shall be punished as a court-martial may direct.” (This text applies to all offenses except sedition and the three related offenses discussed below.)

 - Maximum punishment for soliciting all relevant offenses besides sedition is also the same as the maximum punishment for the offense. The cap for solicitation generally is whatever the punishment for the “base” offense allows or 10 years, whichever is lower. Since the maximum period of confinement for riot is 10 years, the cap of 10 years for (most) solicitation offenses does not alter the maximum penalty here.

 - My analysis: Charging solicitation to commit the offense of riot would counter the likely defense claim that President Trump should not be considered part of the Capitol siege since he did not actually accompany those who breached the Capitol. Just like for the base offense, the determinative issue would be whether President Trump mutually intended the rioters to take unlawful action “against anyone who might oppose them.” The nature of his rhetoric in telling the crowd in DC that we’ve got to “get rid the weak congresspeople,” that “you'll never take back our country with weakness” and that “you have to show strength and you have to be strong,” combined with all the other relevant written and verbal expressions, would very likely be enough to demonstrate the requisite intent at trial.

 Solicitation to commit sedition [et al.].

 Text: Any person subject to [the UCMJ] who solicits or advises another to [commit sedition or three other offenses not relevant here] if the offense solicited or advised is attempted or is committed, shall be punished with the punishment provided for the commission of the offense.

 Elements: (1) That the accused solicited or advised a certain person or persons to commit a certain offense under the UCMJ; and (2) That the accused did so with the intent that the offense actually be committed. [Note: If the offense solicited or advised was attempted or committed, add the following element] (3) That the offense solicited or advised was (committed) (attempted) as the proximate result of the solicitation.

 Maximum punishment for soliciting sedition is the same as the max punishment for the “base” offense if the offense solicited or advised is actually committed (if not, the maximum penalty is 15 years of imprisonment). Since the acts arguably solicited were indeed carried out, the maximum punishment in this case would be the same as for the base offense – death.

 - My analysis: Just like with the charge of soliciting the offense of riot, charging sedition as a solicitation offense in the alterative to the base offense would neutralize the defense argument that President Trump should not be considered to be part of the Capitol siege since he wasn’t physically present at the Capitol. The contentious issue, just like in the base offense, would be whether President Trump intended the protest to cause the overthrow or destruction of Congress – but based on the record of admissible evidence, a finding of guilt would be quite conceivable. With a finding of guilt and based on the grave nature of the ensuing siege, a penalty of death would be entirely possible.

Concluding Reflections

If then-President Trump were subject to UCMJ, there is no doubt he could at least be convicted of contempt toward officials – which carries maximum confinement of one year and “dismissal” (dishonorable discharge), and breach of peace – which carries maximum confinement of six months. A very strong case could be made to support convictions for the offenses of riot, with a maximum penalty of 10 years of confinement and a dishonorable discharge, or even sedition, which carries a maximum penalty of death.

While the intent element of each of these more serious offenses – riot and sedition – would be the central contentious issue at court-martial, there is ample evidence to support a commander’s decision of initiating these court-martial charges if Donald Trump were a military service member and therefore subject to the UCMJ. The primary factor for the advising attorney and the commander to consider from the “non-binding disposition guidance” published by the Secretary of Defense is “whether admissible evidence will likely be sufficient to obtain and sustain a conviction in a trial by court-martial.” Based on the available factual record, it would be reasonable to conclude that the evidence would “likely be sufficient” – even if the outcome at trial would not be absolutely certain.

With such a strong case to be made that President Trump committed these serious violations of the UCMJ in relation to the Capitol siege, is it reasonable to conclude that Donald Trump should be disqualified from seeking an office of public trust – especially as president of the United States – in the future? That is a question that now rests with the United States Senate – particularly Senate Republicans.

In considering this decision, some language from Army Regulation 600-20, Army Command Policy, might be useful. As the regulation establishes, “All commanding officers and others in authority in the Army are required—1. To show in themselves a good example of virtue, honor, patriotism, and subordination. [… and] 4. To take all necessary and proper measures, under the laws, regulations, and customs of the Army, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.” It is in this manner that “professionally competent leaders will develop respect for their authority.” In short, as the Army Command Policy observes, it is a “privilege to command.”

There is absolutely no question that President Trump’s conduct in relation to the Capitol siege violated the Uniform Code of Military Justice – and it is quite likely that the most serious such offense would subject him to the potential for the death penalty if he were eligible to be tried by court-martial. If he were a commissioned officer in the armed forces and he engaged in this conduct, his commanding general would, without a doubt, at least be able to refer the offenses to a court-martial. These reflections and the analysis above should weigh heavily on the minds of the United States senators who will soon vote to determine whether Donald Trump should be “removed” from office and disqualified from holding a position of public trust in America again.

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