Sunday, February 7, 2021

Bus stop

 According to a recent post on another blog regarding events on 6 January:

For both of my esteemed fellow military justice scholars [Prof. Rachel E. VanLandingham and the Editor], the potential for punitive action seems to be that Emily Rainey organized the group that traveled from North Carolina to DC for the protest. As [Eugene R.] Fidell notes, “If you’re the organizer, you are exercising the leadership role. That does create a problem with” DoD Directive 1344.10. On this point, VanLandingham seems to agree, noting, “It sounds like she was leading, and that’s where the real problem is going to come in.”

While it seems that both professors are correct to conclude that Rainey performed a “leadership role” in organizing a group that attended the rally, it is less clear how doing so might violate DoD policy. Service members are not allowed to “participate in partisan political…rallies,” but in this context prohibited “participation includes more than mere attendance as a spectator.” 

In a separate piece co-authored by Fidell and VanLandingham and posted on Just Security, the professors expand on their analysis asserting that active-duty personnel may have violated the UCMJ by attending the protest. However, by my assessment their analysis both misconstrues the relevant DoD policy and conflates mere attendance at the rally with participating in the Capitol siege.

The post concludes, in bold type:

[S]o far there is no indication that any active-duty service member violated applicable law or policy just by attending the “Save America Rally.” For now, this is true of Captain Emily Rainey as well – even if she helped organize and lead a road trip to Washington, DC. [Emphasis added.]

The post both misapplies the governing regulation and incorrectly accuses us of having conflated participation in the seditious January 6 events at or inside the Capitol with mere attendance at the Ellipse rally. Readers are encouraged to consult what we actually said to and wrote in our posts.

The flawed conflation accusation aside, what is the heart of the matter? This: the only activity specifically permitted by the punitive DoD regulation on political activity by members of the armed forces in connection with partisan political rallies is “mere attendance as a spectator.” 

The notion that military personnel can lawfully coordinate, advertise, organize, and “lead” (in Captain Rainey’s words) busloads of people to attend a partisan political event like the Ellipse rally disregards both the letter and the spirit of the regulation. 

Context matters. Our comments were not about anyone's “spectator” status at the rally.  Instead, they dealt with Captain Rainey's reported conduct before that event. Per her Facebook posts, she did considerably more than simply offer a ride to some random hitchhiker to Washington; according to press accounts, she helped advertise the event, arranged bus transportation for numerous other individuals, and coordinated their actual attendance. If that constitutes “mere attendance,” then baking a dozen loaves of bread for the neighborhood is the same as eating a slice.

An officer who organizes a busload of people to attend a partisan political rally has engaged in prohibited “participation” in a partisan political event (and, indeed, would have done so even if the officer herself had not, in the end, attended the rally). Advertising the event on social media, urging others to attend, and coordinating their transportation is no different, for purposes of the regulation, from obtaining a required permit; hiring a sound stage, entertainers, an auditorium, or the security force; alerting the media; or doing any of the countless other things that are necessary for a successful partisan political event. All are verboten and in our view, a military judge or a commander exercising non-judicial punishment authority under Article 15, UCMJ, would hold that a person subject to the Code who organized a group bus trip for travel to the Ellipse rally had violated the regulation and was guilty of an offense under Article 92(1), UCMJ. 

Perhaps the Army will decide not to bother charging Captain Rainey. After all, she was already in the process of resigning her commission, so why make her a martyr? But on the face of it, it is hard not to see a violation of the Code if the facts are as they seem to be.


  1. Thank you for sharing the analysis. As the author of the post being addressed, I of course have divergent perspectives. Nonetheless, I sincerely respect and appreciate the analysis above. Great post!

  2. The facts seem to show that this wasn't her first rodeo in the context of protests:

    A Defense official told CBS News the Army is investigating how many soldiers from Fort Bragg accompanied Rainey to Washington. Rainey had resigned her commission after receiving a career-ending letter of reprimand for her actions at an earlier protest in the Fort Bragg area, Martin reports.

    FACT: [also from the CBS link above]:

    Rainey made headlines back in May after she posted a video online of her pulling down caution tape at a playground that was closed under North Carolina's COVID-19 restrictions.

    Police in Southern Pines, a community about 30 miles west of Fort Bragg, charged her with injury to personal property over the incident. The police told WRAL-TV that they let her off with warnings twice before after she tore down the tape closing off the playground.

    Criminal conduct would seem to me to fall both within the parameters of Articles 133 and 134.

  3. See generally, Culver v. Sec'y USAF, 559 F.2d 622 (D.C. Cir. 1977).


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