I find much to applaud in Maj. (P) Dan Maurer’s thoughtful Lawfare post on potential unlawful command influence (UCI) issues associated with the president’s tweet about the controversial case of Maj. Matthew Golsteyn. While UCI is, as the courts have said frequently, the “mortal enemy of military justice,” it is important to carefully distinguish the facts to avoid eroding the importance of civilian oversight of the military justice system. That oversight is a critical aspect of civilian control of the armed forces so essential to a democracy.
The Role of Civilian Oversight
The president’s tweet read:
At the request of many, I will be reviewing the case of a “U.S. Military hero,” Major Matt Golsteyn, who is charged with murder. He could face the death penalty from our own government after he admitted to killing a Terrorist bomb maker while overseas. @PeteHegseth @FoxNews
— Donald J. Trump (@realDonaldTrump) December 16, 2018
Maurer characterizes this tweet as what he claims is “still another political encroachment [by Trump] into military affairs.” He suggests that the Supreme Court’s decision in the recent case of Ortiz v. United States transformed the military justice system—which, constitutionally-speaking, is creature of Congress’ Article I, Section 8 power to “make rules” for the military, and not part of the Article III judiciary—into something so akin to the civilian judiciary that the Uniform Code of Military Justice (or “UCMJ” as, codified at 10 U.S.C. § 801, et. seq.), not to mention the entire corpus Supreme Court military justice precedent, is eviscerated with respect to the role of the commander.
Maurer assumes that the president is, in effect, just another military commander for military justice purposes, and then extrapolates his theory about Ortiz to apply to military justice prohibitions about UCI. Maurer goes too far in this contention. Of course, the president is the commander-in-chief and as such he exercises the attributes of command. However, as an elected civilian his role is, by design, broader than that of military commanders who, unlike the president, aren’t part of the Constitution’s scheme for ensuring civilian oversight of the military’s Article I justice system. Because Maurer doesn’t sufficiently differentiate the president’s distinct oversight responsibilities (in terms of both Article II and the UCMJ) from those of uniformed commanders, he believes that the president’s announcement of his intent to review Golsteyn’s case infringes upon judicial independence as understood in the Article III “frame”—and is, therefore, UCI corruptive of civil-military relations.
But Ortiz simply does not do the work that Maurer argues it does. Among other things, the case is not at all about UCI. Rather, its main conclusion relevant to this discussion is that the military justice system is as sufficiently judicial in character as other non-Article III tribunals so as to permit Supreme Court “to review the decisions of the court sitting at its apex” (which is the all-civilian Article I tribunal, the Court of Appeal for the Armed Forces or CAAF). (See Harvey Graver’s excellent summary of Ortiz found here.)
Nothing in Ortiz implies any intent to upend the UCMJ; to the contrary, Ortiz can be read as a full-throated endorsement of the system as it exists today. Indeed, the Supreme Court said “the constitutional foundation of courts-martial—as judicial bodies responsible for “the ‘trial and punishment’ of service members—is not in the least insecure.” The court does recognize that a court-martial is bound like “any court” to adjudicate cases “without partiality, favor, or affection.” But that hardly can be read as insinuating a diminished role for the civilian oversight embedded by Congress into what the Supreme Court has repeatedly recognized as a separate justice system necessitated by the military’s unique responsibility to “fight or be ready to fight wars should the occasion arise.”
Now consider the president’s tweet. He wrote only that he would be “reviewing” Golsteyn’s case, a matter for which no decision has yet be made as to whether or not it will go to trial. Presidential review of a pending military justice case is not “unlawful command influence.” U.S. military law (Rules for Courts-Martial [R.C.M.] 401 (a)—found in the Manual for Courts-Martial) provides that “[a] superior competent authority may withhold the authority of a subordinate to dispose of charges in individual cases, types of case, or generally.”
In the military justice system, the president would be a “superior competent authority” within the meaning of R.C.M. 401(a). While rather unusual, it isn’t necessarily improper for a senior commander to review a case with a view towards determining whether or not to withhold from a subordinate commander the authority to decide its disposition. This authority includes the civilian commander-in-chief.
Put another way, it is perfectly legal for the president to reserve to him- or herself the decision as to how a case is resolved within the military justice system.
The provision of the UCMJ that concerns UCI, 10 U.S.C. § 837, does provide that “no person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.” However, a president announcing he will review a case doesn’t breach this provision.
Among other things, the president is not a person “subject to this chapter” as Article 37 would require. Maurer notes that in one case (U.S. v. Hutchins) CAAF “addressed how the civilian secretary of the Navy could have committed actual or apparent UCI, even though that civilian, like the president, is not subject to the military jurisdiction Article 2 of the UCMJ.” But Hutchins is inapposite to the facts here. What CAAF actually said is this:
However, an accused has a due process right to a fair trial and appeal, free from the undue influence of superiors, whether they are military officers or civilians in policy and administrative positions. Thus, regardless of whether Article 37, UCMJ, applies to the Secretary of the Navy, unlawful influence by a civilian official may present a due process “error of constitutional dimension.” (Emphasis added.)
This conclusion has never been sanctioned by the Supreme Court. But even if CAAF is correct, a due process-based UCI claim would concern the rights of the accused. The allegation in the Golsteyn case is that the president’s tweet is somehow harmful to the government decision (or not) to exercise prosecutorial power. In any event, the government does not have—nor does Hutchins suggest it does—a “due process [UCI] right” of any sort.
Maurer does cite comments by President Obama regarding his desire for dishonorable discharges to be meted out in sexual assault cases. In one trial-level case, Obama’s remarks caused the trial judge to impose “a curative remedy in that case that barred a punitive discharge if the accused had been found guilty”—but there are no appellate decisions. Again, this case involved an accused’s right, not something to which the government was entitled.
More to the point, since the president has clear authority under R.C.M. 401, it would not be improper for him to announce that he is going to review a case. That is, doing so isn’t an “unauthorized means” of influencing a military justice action, because the law authorizes the president, if he wishes, to decide whether or not the case goes forward to trial. To reiterate, there is simply no textual or due process impediment to the president announcing he would be “reviewing” a military justice case.
In fact, Trump’s decision to review a single military case at this early stage is a relatively modest instance of civilian oversight. There are many precedents showing far greater involvement by presidents. For example, President Lincoln reviewed more than 1,600 military justice cases during the Civil War. President Coolidge was reportedly personally involved in the Billy Mitchell court-martial. In Ex parte Quirin, President Franklin Roosevelt ordered Nazi saboteurs tried by a military commission instead of a civilian court even though one of the accused was a U.S. citizen. And there was Nixon’s release of Lt. William Calley to house arrest after Calley’s court-martial conviction for murdering 22 South Vietnamese civilians at My Lai in 1968.
Maurer mentions that the Trump tweet is “prompting speculation over whether Trump might derail the case by issuing a pardon.” I can’t recall a military justice case in which a pardon was issued before conviction, but there have been many civilian cases in which that’s occurred. For example, the Washington Post reports that “President Jimmy Carter pardoned hundreds of thousands of Vietnam draft evaders, including those who had not been charged or convicted.” Nothing in the Constitution bars such “preemptive” pardons for those in uniform.
In terms of pardons and commutations of those actually convicted in military courts, there is ample precedent: President Obama famously commuted the sentence of Chelsea Manning (see here), and also pardoned or commuted at least two other court-martial convicts (David Raymond Mannix and Edgar Leopold Kranz, Jr). I am not aware of a pardon for murder, but the Supreme Court in Schick v. Reed upheld the commutation (by President Eisenhower) of a court-martial death sentence to life without the possibility of parole.
Public Perceptions of Military Justice
Maurer is concerned that the president’s Golsteyn tweet may “risk tainting the public’s perception of independent, unbiased and self-regulating military justice.” In legal terms he is referencing the military justice concept of “apparent command influence,” in which the question is not whether actual UCI occurred, but simply “whether a reasonable, disinterested member of the public, fully informed of all the facts, would perceive the military justice system as fair.”
But I doubt that “fully informed” members of the public would be much concerned about a presidential review if they understood that the law explicitly permits the president to do so. Moreover, my bet is that a “fully informed” member of the public would likely want civilian oversight of the military justice system.
In my experience of more than three decades in uniform, including service as a prosecutor, defense counsel and military judge, the public often believes the military justice system is vastly more draconian than it actually is. In the 2009 case of U.S. v. Denedo, for example, Chief Justice John Roberts cited with approval the 1957 case of Reid v. Covert for the proposition that "traditionally, military justice has been a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks."
Particularly in an era where the nation is dependent upon citizens volunteering for military service, the public has a right to expect that civilian leaders accountable to the electorate will ensure that those who do don the uniform are treated fairly. What’s more, my sense is that a “fully informed” member of the public would also appreciate that the purpose of the military justice system needs to be broader than that of its civilian counterpart.
The Manual for Courts-Martial (which itself is sourced in 10 U.S.C, § 836) states in paragraph four that: “The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.” Similarly, the Supreme Court, citing an earlier case, noted in Parker v. Levy that the “military is, by necessity, a specialized society separate from civilian society.” Additionally, it noted (citing an earlier case) that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty.”
All this uniqueness militates for robust civilian oversight of this separate society where citizens’ rights must yield for the greater good. While UCI is rightly decried, there is also lawful command influence in the military justice system, and it can be appropriately wielded by civilian leaders. We saw that last summer when former Secretary of Defense Jim Mattis, acting in his civilian capacity, issued a letter to commanders about military justice.
In a democracy, elected civilian leaders ought to be exercising oversight over the activities of the armed forces, including the justice system that provides accountability for those forces. Among other things, when properly done civilian oversight can serve as a bulwark against unfairness in the ranks. It doesn’t hurt for military leaders to be reminded from time to time that their civilian boss is watching.
Obviously, Trump’s use of social media to announce his intention to review the case is unorthodox. Still, there may be some real value in transparency about military justice actions. It reminds the armed forces—and even the public at large—that in this country there is civilian oversight, and that an elected leader can have the last word as to whether or not a military justice case goes forward.
Processes that enhance civilian control of the military transcend—or ought to transcend—a particular administration. They are just too important.