Among the many calls for accountability for the January 6 putsch at the U.S. Capitol, attention has focused on the involvement of military personnel. These calls, which are entirely understandable given the role of the armed forces in protecting the country, raise a surprising number of legal issues. We will try to unpack a few of them.
Early reports suggest that active, reserve, retired, and former military personnel may have participated in the putsch. It is critical not to make any assumptions until a better grip can be had on the facts of each individual’s case. It is also critical not to treat these distinct categories as if they are legally fungible; they are anything but. And as we explain below, the military justice system could be available for some of these groups, but not others.
However, we argue that even in cases where courts-martial could be used, civilian courts should try those responsible for organizing and participating in the putsch – our civilian institutions of government are open and up to the task, and should be used as a first resort. We also offer avenues of accountability within the military beyond criminal trials.
An Overview of Potentially Applicable Offenses
The 1950 Uniform Code of Military Justice (UCMJ), an exercise of Congress’s constitutional power to “make Rules for the Government and Regulation of the land and naval Forces,” criminalizes a host of classic forms of military misconduct, many familiar civilian crimes like murder, larceny, and arson, while also sweeping in all federal civilian crimes for which the death penalty is not authorized. The UCMJ additionally criminalizes all conduct “to the prejudice of good order and discipline” as well as that “of a nature to bring discredit on the service.”
Among the UCMJ’s so-called “punitive articles” is the seemingly pertinent offense of sedition. According to Article 94(a)(2), anyone subject to the UCMJ who, “with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against the authority is guilty of sedition.” Persons who are subject to the UCMJ also violate this article if they fail to do their utmost to prevent and suppress sedition committed in their presence, or fail to notify their superiors of sedition they know or have reason to believe is taking place. Either kind of sedition—actual or the failure-to-suppress or -inform subset—is punishable “by death or such other punishment as a court-martial may direct.”
Interestingly, treason is not one of the UCMJ’s enumerated offenses and the federal civilian crime of treason cannot be incorporated through the “crimes and offenses not capital” clause of Article 134 because it is a capital offense. However, military personnel remain subject to applicable federal criminal law (and applicable state law, although not relevant here given the District of Columbia’s federal status). Thus, civilian authorities could prosecute individuals who are subject to the UCMJ for treason and other crimes under title 18 of the U.S. Code or the District of Columbia Code, which, among other things, makes it a crime to riot or incite a riot. The Double Jeopardy Clause, of course, would prevent prosecution under both the UCMJ and either of those sources of criminal law.
Turning back to military criminal law, in addition to sedition, potentially pertinent offenses include unlawfully confining any person; destroying or damaging property of the United States; communicating a threat; riot or breach of the peace; murder or attempted murder; willfully and unlawful destroying a public record or taking such a record with intent to destroy it; larceny and wrongful appropriation; kidnapping; assault; burglary and unlawful entry; stalking; obstruction of justice; concealing a serious offense by another person; conduct prejudicial to good order and discipline as well as service-discrediting conduct; and in the case of commissioned officers, “conduct unbecoming an officer and a gentleman.”
In the interest of completeness, it is worth mentioning that commissioned officers—incredibly, one or more may have been involved in the putsch—are also subject to court-martial if they “use contemptuous words against” Vice President Mike Pence or Congress under the same provision (Article 88) that protects the President. “Hang Mike Pence,” chants heard outside the Capitol, appear to fit the definition. Truth, if you were wondering, is not a defense under Article 88.
Additionally, violations of certain military regulations—those that are known as “punitive regulations”—are punishable as a violation of Article 92 (“Failure to Obey Order or Regulation”). The ability to court-martial military personnel for regulatory violations is critical because the services have regulations on political and extremist activities. Among other things, regulations forbid military personnel from participating in political activities in uniform or taking a leadership role in such activities. The Army’s regulation on Command Policy treats as extremist activities “[s]upport for persons or organizations that promote or threaten the unlawful use of force or violence or criminal activity,” and “[p]articipating in activities advocating or teaching the overthrow of the U.S. Government by force or violence, or seeking to alter the form of government by unconstitutional means (sedition).” In addition,
Soldiers are prohibited from the following actions in support of extremist organizations or activities. . . . (1) Participating in public demonstrations or rallies. (2) Attending a meeting or activity with the knowledge that the meeting or activity involves an extremist cause when . . . [i]t constitutes a breach of law and order [or] is likely to result in violence.
Organizing a group to travel to Washington for the “wild” January 6 event President Trump promised, or arranging transportation for such a group, let alone participating in the attack on the Capitol, would thus seem to be punishable under the UCMJ.
Who Could be Charged under the UCMJ?
More than a few UCMJ offenses could be prosecuted in a court-martial, depending on investigatory findings of the attack on January 6 and the events that led to it. Assuming some UCMJ provision was violated last week, a court-martial must have not only subject-matter jurisdiction over the offense – it also needs personal jurisdiction over the accused.
Who is subject to the UCMJ? Listed in Article 2 of the Code, they naturally include active duty personnel, including reservists on active duty. After that, it gets more complicated. They also include certain retirees: retired regulars, as well as retired reservists who are receiving military hospitalization. Retirees are occasionally court-martialed, more frequently in the last decade, but the practice remains rare. Moreover, whether it is constitutional to try a retiree by court-martial is a matter of current dispute in the courts. Last year, in a case in which one of the authors is co-counsel, a federal district judge in Washington, DC held that it was unconstitutional to court-martial a retired Marine for an offense committed after retirement in Okinawa. Other litigation is pending in the U.S. Court of Appeals for the Armed Forces, the civilian court whose five judges function as the equivalent of a state supreme court for the military.
The Supreme Court has never squarely addressed the constitutionality of court-martialing retirees, but it may have its chance to do so in the next year or so based on the recent federal court decision. Thus far, it has addressed the matter only in passing, and has refused to grant plenary review of past challenges to this part of the UCMJ. Tempting as some may find it to seize upon last week’s insurrection as an occasion to support the constitutionality of court-martialing any participating retirees, this event in no way justifies denying the two million military retirees the full constitutional rights they would otherwise be entitled to in a civilian courtroom.
Reservists are not subject to the UCMJ unless they are performing reserve duty at the time of the offense. National Guard personnel are not subject to the UCMJ either, unless they are serving in a federalized capacity.
This leaves veterans—individuals who served in the past but have simply been discharged from the armed forces. These “pure” veterans are not subject to trial by court-martial, and stand on the same footing as individuals who have never been in the military. Congress has subjected civilians to court-martial only when they are serving with or accompanying an armed force in the field in time of a declared war or in a contingency operation. No civilian who was involved in the putsch would fall within that category.
Civilian or Military Courts?
Another crucial inquiry is where personnel over whom there may be concurrent military and civilian jurisdiction ought to be held accountable for any criminal activity – civilian or military courts. Interagency memoranda reproduced in the 2019 Manual for Courts-Martial set out the basic criteria (see Appendices 3 and 4). As we read the memoranda, the Department of Justice would very likely have primary jurisdiction over any putsch-related offenses by personnel who may also be subject to trial by court-martial.
As a matter of principle, we believe it would be preferable for any military personnel to be tried in the same forum as others who stand trial for putsch offenses. The military status of such offenders, if any, is important but not dispositive, and our own view is that there is an extremely strong interest, especially in this fraught moment, in underscoring in every way possible the vitality of the country’s enduring civilian institutions of government. Any deterrent message normally sent by a court-martial to those currently serving can be fulfilled through federal prosecution if the military publicizes such a conviction and uses it as a teaching tool.
Civilian prosecution would not leave the military stuck with felons – indeed, a number of other forms of accountability are available. The military can administratively discharge members based on criminal convictions. Furthermore, some military crimes such as Article 133 (conduct unbecoming) have no civilian equivalent, thus avoiding double jeopardy. That is, use of such a uniquely-military offense would seemingly allow a current military officer to be convicted both in federal court for putsch-related offenses, and subsequently court-martialed for unbecoming behavior, thus providing an avenue for a punitive discharge (called a dismissal in officer cases). Officers who are absent from duty because they are in civilian confinement can also be dropped from the rolls.
There is one other aspect that should be taken into account: the possible impact on retirement benefits. It is true that a military retiree can be dismissed by sentence of a court-martial, and thereby forfeit lifetime retired pay rights. However, depending on the offense, it may be possible to achieve the same result in civilian court under the Hiss Act, which forfeits retirement benefits upon conviction for certain federal offenses, including, notably, treason, rebellion or insurrection, seditious conspiracy, and advocating overthrow of the government. Those who may be convicted of relatively minor offenses such as trespass and property destruction, however, would retain their lifetime retired pay rights unless also convicted by court-martial.
Criminal prosecution aside, military personnel may be exposed to a variety of formal and informal sanctions if they are found to have participated in the putsch. These include administrative separation for misconduct, career-ending letters of reprimand, adverse performance evaluations, grade determinations that may affect their eventual retired rank and pay, special training, duty assignments, and a host of others.
What Congress Should – and Shouldn’t – Do
Finally, we want to caution Senators and Representatives against involving themselves in retail military justice—that is, what should be done with respect to particular individuals who may have committed infuriating civilian or military offenses, or whose conduct otherwise falls beneath the level expected of those who wear the nation’s uniform. Over the last several years, individual legislators and congressional committees have engaged in a disturbing trend of interfering with the adjudication of specific offenses by military personnel (much as President Trump wreaked havoc by intruding on pending cases such as that of SEAL Chief Petty Officer Edward Gallagher). These actions raise unlawful command influence concerns and can deprive individual service members of their right to due process and fair trials and administrative proceedings. Justified prosecutions or hearings can be jeopardized by these kinds of intrusions. Pushed to extremes, they can give rise to concerns under the Bill of Attainder Clause.
Congress makes the rules, and accordingly should provide necessary oversight, but it should not direct the application of the rules in certain ways in certain cases, out of due process and separation of power concerns.
That doesn’t mean Congress has no role to play. Cognizant Hill committees should turn their gaze instead to Defense Department and service-branch policies and directives concerning extremist activities, the misuse of social media, and permitted or forbidden political activities in general. But committee chairs and congressional ethics authorities would do well to caution members to steer well clear of delving into whether and how military disciplinary and administrative separation processes function in specific cases and with respect to specific individuals. That is not oversight, it’s over-stepping their role under the Constitution. It would be truly ironic to violate the Constitution in the very course of defending it.