The Ukraine Connection

What Lt. Col. Vindman’s Testimony Says About Civil-Military Relations and Military Justice

By Dan Maurer
Monday, November 18, 2019, 10:45 AM

On Oct. 29, Army Lt. Col. Alexander Vindman was deposed by three standing congressional committees conducting the impeachment inquiry into the conduct of President Trump, triggered by a whistleblower’s concerned recounting of an Oval Office phone call with President Volodymyr Zelensky of the Ukraine. Vindman, who listened to the conversation with other staff in the Situation Room as part of his regular duties, was subpoenaed to testify under oath to learn his impressions of the motive, purpose and content of the now-infamous call.

In complying with the subpoena, Vindman became the target of much-criticized speculation on Fox News, where guests and hosts questioned his motives and loyalty because of his Ukrainian birth. Vindman earned the commander in chief’s attention too, as Trump dismissed his testimony as that of a “Never Trumper” and later told reporters that he would expose further information about Vindman. (As of this writing, the White House has not released any further information about Vindman’s impartiality or his factual accounting of the phone call.) Vindman has since been vigorously defended by former colleagues; members of Congress; and senior military officials, including retired general and former chairman of the Joint Chiefs of Staff, Joseph Dunford.

In the days since Vindman’s testimony, much has been written about whether he can, or should, be court-martialed for what one journalist cavalierly described as “his choice to rebel against his White House chain-of-command.” Those advocating for criminal sanctions on Vindman take the view that he was directly ordered by a superior—and thus ultimately by the president—not to obey the congressional subpoena but did so anyway.

There are a number of problems with this argument. To begin with, it seems now that Vindman never received an order not to testify by his chain of command but was, rather, instructed not to comply with the subpoena by the chief legal adviser for the National Security Council. But even had he been ordered directly by the commander in chief, or anyone else in his formal chain of command, it is not as evident as some commentators seem to expect that he could be court-martialed.

Like any other alleged crime, this scenario raises the positive question of “can he be court-martialed?” as well as the normative question of “should he be?” With regard to the first question, there are myriad ways to construe such conduct as criminal under the Uniform Code of Military Justice (UCMJ). With regard to the second, there are already helpful practical criteria by which to consider whether to employ such a dramatic step. The irony is that these criteria are promulgated by the president.

When pure politics mixes with pure foreign affairs, the “duty” owed by a military officer to a civilian authority is neither straightforward nor easy to scope. Neither is it clear what would constitute a “breach” of duty nor how a remedy for that breach is to be determined. In other words: What duty is owed? Who owes it? What constitutes a violation? How is a violation resolved?

With a possible impeachment, conviction and removal of a sitting president on the line, the particular problem of Vindman’s exposure to military criminal law may seem like relatively small potatoes. But the episode says a great deal about the meaning of the oath of office taken by commissioned officers, the nature of professionalism, the purpose of military justice and the Constitution’s separation of powers.

All of that from a single question: Can an active-duty military officer, assigned to work with the White House directly by serving on the National Security Council staff, choose to testify before Congress on a subject involving foreign affairs in a way that seemingly portrays the president engaged in conduct that could be impeachable? Even though Vindman’s legal liability is mostly hypothetical, it is worth exploring the issues the situation raises.

The opinionated answers are as polarized as much of the rest of political and civic discourse is today. But stepping back, the question resolves itself into a far more complicated picture, posing several more nuanced and seemingly intractable questions. For example, in discussing his potential exposure to military justice, we ought to distinguish between Vindman’s decision to testify and the testimonial content itself. Both actions raise the possibility of different kinds of sanctions based on different theories of culpability. If we ask about his testimony itself and whether it ought to subject him to prosecutorial scrutiny by the chain of command, there are three component features to consider: Vindman’s characterization of the president’s conversation as being of concern and threatening national security; his recounting of specific statements made by the parties or that the published transcript omitted key words and phrases; and his recounting of the contextual history and circumstances leading up to, and following, the phone call.

Each could—in theory—form the basis for an alleged offense. But they also implicate well-known, but less understood, duties of confidentiality and candor intrinsic to the principal-agent nature of civil-military relationship.

The Civil-Military Relations Question

The issues here go far beyond Vindman and raise important concerns regarding the character, health and stability of the contemporary civil-military relationship. By candidly and purposefully describing his views on and about the phone call—and contributing not just to partisan controversy and electoral risk but also to presidential impeachment and possible removal from office—Vindman’s choice reveals fundamental dilemmas facing any professional agent and his principal, who may lack the agent’s expertise but needs the agent to fulfill the principal’s goals. If Vindman, as an expert agent, breached what I have described as civil-military fiduciary duties of confidentiality, discretion, trust and loyalty, his “dereliction” might seem like it could be drawn into the maw of military justice.

But Vindman—as an officer—also swears an oath to support and defend the Constitution. And this means it is not at all obvious that the content of his testimony puts him on legally shaky ground. Clearly an employee of the executive branch, he is duty-bound to obey lawful orders of the chain of command. However, Congress’s constitutional authorities under Article I and its shared role in the use of armed force and regulation of the armed forces necessarily means Vindman serves two principals, not just one. His oath, after all, is defined by Congress. Yet while these may be co-equal branches of government, they are not always—from the perspective of a military officer—co-equal principals.

The awkward co-parentage relationship means each principal has “custody” over this agent’s candor, confidence and diligence determined by the principals’ respective functions at a given time and place. Generally speaking, when the military is planning and executing its warfighting missions and designing its strategy, many things—operations and tactics, commitment, scope of responsibility, work ethic and specified tasks—are subject to far-reaching instruction and guidance by the office of the president, in its commander-in-chief function. (I say “office of” to distinguish that this is not a personal or institutional duty of loyalty to the person of the president.) Yet, when the military is focused on its personnel and materiel—say, recruiting, pay and benefits, supply, discipline, training, morale, among others—its commitment, scope of responsibility, work ethic and specified tasks are subject to far-reaching legislative instructions and parameters and, therefore, robust oversight. The tricky problem with this parenting analogy is that there is no neutral way to adjudicate a conflict, like a family law judge would in a child custody dispute.

The military agents’ missions in these domains are often concurrent; the uniformed agents involved are at times straddling both fields. Further complicating discussions of “duty” is the simple fact that each principal has a legitimate interest in what the other is doing with respect to “their” military. Congress, for instance, cares about the president’s intent for the duration and scope of military operations because the Constitution assigns the decision to declare war to the legislature. Congress has an interest in things besides conflict, including the health and future prospects of international relations, and those things require money. Congress has an interest in keeping the executive branch from assuming too much power relative to its own. Their constituents are members of the armed forces. The weapons of war are designed and manufactured in their districts and states. Members of Congress hold the “power of the purse.”

Meanwhile, presidents care about how much money Congress will authorize and appropriate for combat operations, support, research, procurement, and construction, because the Constitution gives to the president the duty of waging war once Congress has declared it. The president has an interest in things besides conflict, and those things require money. Presidents have an interest in keeping the legislative branch from assuming too much power relative to the executive. And presidents tend to assume, with the courts’ acknowledgment and legal blessing (but, maybe, depends), unilateral authority over foreign relations and diplomacy.

These two principals’ parallel interests find themselves converging on individual service members in the form of the military justice system. The UCMJ is a federal criminal statute. Congress has defined what conduct, behaviors, acts or omissions deserve penal treatment and community sanctions. At the same time, those prohibitions (and their justification) were adopted from centuries of custom, tradition, and battlefield experience and expectations proclaimed as militarily necessary by the military itself. And Congress has given senior executive branch civilians—both elected and appointed—authority to exercise this system. This system that uses courts-martial as the judicial tribunal of choice is managed entirely by the Department of Defense and, ultimately, the president. It is via executive orders that the military justice system has rules of procedure, rules of evidence and a menu of potential punishments. It is via each service’s Judge Advocate General’s Corps and law enforcement units that the military justice system is administered, with prosecutors, defense counsel, support staff, trial judges, appellate judges, courthouses, confinement facilities, military police and investigators. It is via each department that rules and regulations for managing these processes, people and materiel are promulgated. It is via the military chain of command that decisions to prosecute or not, and to what extent, are made. The Supreme Court has both deferred to the military’s judgment to a substantial degree in reviewing the constitutionality of this system and likened its fundamental features to normal, civilian systems of justice.

But there are a limited number of constitutionally permissible reasons for having a military justice system separated from civilian criminal jurisdictions. In fact, there are only three: to “maintain good order and discipline,” to promote “justice” within the units and organizations, and to promote “efficiency and effectiveness in the military establishment.” These are means to achieve the end of “strengthen[ing] national security,” as the Manual for Courts-Martial states. Keeping in mind military law’s purposes, the animating concern would seem to be less about holding Vindman to account for the matters on which he testified, framed as criminal misconduct, than about lawful civilian control over the armed forces. By being candid and honest with Congress, was Vindman breaching an expectation of fidelity and confidentiality? This is a topic not usually debated when it comes to advocating for or against the application of military justice.

So, if we are concerning ourselves with Vindman’s testimonial content, the narrative about consequences should change. This real-world case study may look a lot like a simple instance of a military subordinate’s disobedience of a superior’s order—an appropriate matter for the military justice system. But the gravamen of the offense is something else. The crux is whether that delicate, unequal but relatively stable relationship between civilian authority and the military was damaged when Vindman walked out of the White House and up the steps of the Capitol, shifting the expression of his duties of candor, fidelity and confidence from one legitimate authority to another. This makes the utility of military justice as a tool to address those three questions far less obvious or compelling.

The Military Justice Framework

If the question about Vindman’s culpability is focused on his compliance with the subpoena, the issue of criminality becomes somewhat sharper. Where Vindman’s testimony itself could reveal an agency problem between a superior civilian authority and a subordinate military officer within the executive branch, or between Congress and the military officer, the decision to obey the subpoena in spite of an order not to more clearly reveals a conflict about the relative powers of the president and Congress. Which institution wins out when two orders to a subordinate contradict each other, and what liability if any can be imposed by one institution if the officer chooses to obey the other?

Paradoxically, this means that Vindman’s conduct could trigger more UCMJ scrutiny in the midst of a controversy that is not really about him at all but, rather, is about the historical balance and separation of powers between Congress and the president. Could Vindman be charged with a crime and punished with a federal conviction for his decision to obey the congressional subpoena despite “direction” not to do so from within the White House?

This framing presents a clearer case in criminal law. But it raises several more questions whose answers could provide affirmative defenses or counsel against charging in the first place. Was the order to disobey the subpoena lawful in the first place? If not, the answer seems straightforward enough: Vindman must comply with a lawful subpoena like any other citizen, and there is no countervailing lawful order to ignore. At that point, the depth of his candor to Congress and completeness in answering is a matter of employment prudence and his sense of moral obligation to the country, not the law.

But what if the order was not obviously unlawful? Does it make a difference, as a matter of law, whether the direction was suggested or an explicit order? Does it make a difference, as a matter of law, whether that suggestion or order came from the president himself, a subordinate cabinet or sub-cabinet official, or a National Security Council lawyer? Does it matter if the person giving the direction was doing so at the express direction of the president or with his silent consent? What if the president did not know about the “direction” and gave no such “guidance” to any subordinate?

Military orders are presumed to be “lawful.” Military courts have said that the “essential attributes of a lawful order include: (1) issuance by competent authority—a person authorized by applicable law to give such an order; (2) communication of words that express a specific mandate to do or not do a specific act; and (3) relationship of the mandate to a military duty.” The president is authorized by Congress to manage and set rules of procedure for the military justice system. One of those rules (the explanations of Article 90 and 92, UCMJ, in the Manual for Courts-Martial) actually defines what “competent authority” and “lawfulness” mean. A lawful order, it says, cannot be directed at violating the Constitution or the commission of a crime. Assuming it does not, the next query is whether the president’s order bore a “relationship” to a “military duty.”

To answer this question in Vindman’s case, we would look at those same presidentially promulgated rules: We would ask about those “activities reasonably necessary to accomplish the military mission.” In this context, it would be helpful to know the nature of the officer’s position, his assigned duties, the specific tasks he performed to accomplish those duties, and any other responsibilities required of him implied by those duties.

For this officer to be subject to punishment for, say, violating Article 92 of the UCMJ—for failing to obey an order, or “dereliction of duty”—it would have to be the case that the order was not itself violating the Constitution or the constitutional rights of the person to whom it was directed, nor violating any other criminal statute. As Margaret Taylor has written, the question of whether such testimony would be shielded from inquiry despite a congressional subpoena has not been answered definitively by the courts, because so few cases have addressed it and those that have are heavily fact-dependent. Therefore, it is not legally predetermined whether such an order to the officer violates the Constitution.

Assuming arguendo that the order survives this prong, the order would still need to bear a relationship to that officer’s official military duty. It is not obvious that obeying a presidential order to ignore a congressional subpoena bears a relationship to one of the officer’s military duties. And it is not obvious either that the officer ought to even consider, as part of his military duties, how to operate in light of a president’s claim to constitutionally protected “executive privilege.” Resolving that controversy is a duty incumbent on the judicial branch, even if such resolution is difficult or slow.

The question of the order’s lawfulness becomes even more tenuous the more it is removed from the issuance of the military chain of command. Though I can point to no precedential case law to support it, an order to a military officer in a position like Vindman from a civilian lawyer in the officer’s organization, like the NSC counsel, is not “lawful” under the meaning and intent of the UCMJ. So let’s speculate that charging this officer with the crime of disobeying an order would be subject to an undesirable degree of legal skepticism. Is there anything else?

It turns out that there are several other lesser-publicly-known ways to violate the UCMJ without having done something as concrete as disobeying a direct order.

Article 133 is a considerably powerful mechanism to ensure good order and discipline, for it prohibits:

behavior in an official capacity which, in dishonoring or disgracing the individual as a commissioned officer, seriously detracts from his character as a gentleman, or behavior in an unofficial or private capacity which, in dishonoring or disgracing the individual personally, seriously detracts from his standing as a commissioned officer. “Unbecoming conduct” means misbehavior more serious than slight, and of a material and pronounced character. It means conduct morally unfitting and unworthy rather than merely inappropriate or unsuitable misbehavior which is more than opposed to good taste or propriety.

Whether specific conduct is “morally unfitting and unworthy” enough that it so “detracts” from his character “as a gentlemen” or from “his standing as a commissioned officer” is entirely a case-by-case, fact-by-fact, determination. There is no per se violation.

A similar UCMJ prohibition, equally vague and encompassing of otherwise constitutionally protected behavior, is Article 134. It criminalizes “conduct of a nature to bring discredit upon the armed forces.” The Court of Appeals for the Armed Forces has said that this means the fact-finder must reasonably speculate on a couple of levels: Would the conduct, if known by the public, tend to give the military or its members a black eye.

Like Article 133, there is no per se manifestation of “conduct unbecoming.” “Whether conduct is of a ‘nature’ to bring discredit upon the armed forces is a question that depends on the facts and circumstances of the conduct.” The only court-martial of which I am aware that implicates known presidential-level disapproval of conduct by a military officer, involving that officer’s public disagreement with politico-military decisions made by the civilian and military chain of command, was that of Gen. “Billy” Mitchell in 1925. An early air-power advocate in the wake of World War I, Mitchell publicly disparaged the funding, policy and organizational decisions made by the War Department that he felt were undermining the safety of pilots and undervaluing the impact of this domain on future warfare. His statements (about the “incompetency, criminal negligence, and almost treasonable administration of our national defense by the Navy and War Departments”) were the basis for earning the ire of President Calvin Coolidge and charging him with violating the Articles of War in an early version of Article 134, alleging his comments were insubordinate to his superiors and therefore “prejudicial to good order and discipline.”

Unlawful (Command) Influence

Another potential complication here—regardless of specified offense—is the matter of “unlawful [command] influence.” Congress, via Article 37, UCMJ, has prohibited certain individuals in the military justice system from using their official positions to unfairly shortcut impartial due process. Importantly, the law prohibits those individuals who are subject to the UCMJ, like commanding officers and senior uniformed leaders not in command, from engaging in such influence—a prohibition implemented to protect both the accused and the public’s perception of this system in light of the inherently coercive nature of a hierarchical rank-based chain of command. Though military courts routinely decide cases colored by unlawful command influence, it is not clear whether action by a president would or should be likewise prohibited under the statute.

Nevertheless, the president’s statement that he would release information about Vindman should be considered for its potential to taint the appearance of due process afforded to any service member, of any rank, for any alleged offense. The president has previously made statements that have raised questions over unlawful command influence: There has been disagreement over whether President Trump’s previous high-profile interest in cases of Sgt. Bowe Bergdahl, former Special Forces Maj. Matt Golsteyn, and Navy SEAL Chief Petty Officer Edward Gallagher has an undesirable influence on the fairness and impartiality of the military justice system. Trump’s recent pardoning of Golsteyn and restoration of rank to Gallagher mostly moot criticisms of undesirable interference, because the president exercised his legitimate and clear constitutional power in taking those actions. Of course, the fundamental purpose of Article 37 was to protect the accused from unwarranted or unfair prosecutions of service members given the extraordinary power and discretion the UCMJ otherwise grants to commanders over their troops. And the president’s willingness thus far has arguably been to favor the accused or suspect (with a notable exception being Bergdhal). But his comments about Vindman cast further doubt on the wisdom of any theoretical prosecution. (Separately, Trump’s unusually active engagement with military justice cases—specifically, his habit of giving the “benefit of the doubt” to “the guys pulling the trigger,” as Trump allies put it —creates concern within the Defense Department that this favorable treatment signals approval for unthinking resort to force and undercuts the “moral courage” it took for service members and the chain of command to investigate and hold these men accountable for war crimes.)

As I alluded to earlier, this question about whether Vindman could be court-martialed involves key civil-military relations dynamics and constitutional separation of powers issues in a highly partisan atmosphere of an impeachment inquiry. Therefore, this matter is not simply a dilemma of “can he be prosecuted?” Much like any other potential prosecution, but amplified by these unusual circumstances, it is also a dilemma of whether he should be.

Fortunately, we have at the ready a detailed guide for navigating the moral, legal and practical considerations that feature in such decisions. The Manual for Courts-Martial includes an appendix called “non-binding disposition guidance” issued by the secretary of defense, which gives commanders and their judge advocate legal counsel a framework for “how best to exercise their authority in a reasoned and structured manner, consistent with the principle of fair and even-handed administration of the law.” Drawn from and expanding upon similar prosecutorial guidance from the Department of Justice, the American Bar Association, and the National District Attorneys Association, the appendix includes 14 factors to consider when initiating or opting not to take UCMJ action, selecting appropriate charges, and selecting the appropriate “mode of disposition” (that is, court-martial or administrative).

But of particular note is the complementary list of “inappropriate considerations”—factors barred from influencing the prosecutorial decision. These include the accused’s “national origin,” “lawful political association, activities, or beliefs,” the “personal feelings of anyone authorized to recommend, advise, or make a decision as to disposition of offenses,” the “possible effect of the disposition determination on the commander or convening authority’s military career or other professional or personal circumstances,” and, of course, “political pressure.”

Civil-Military Relations or Military Justice?

When a president invests himself in a military justice case, especially one in which his own conduct is a relevant factual circumstance, there is more to the story than just criminal justice. It also strongly implicates and amplifies natural tensions in civil-military relations. Depending on which conduct is at issue, the narratives and remedies may be more appropriately framed in civil-military relationship terms. There, we confront issues of military professionalism, the civilian leader’s “right to be wrong” in the face of a contrary military recommendation, the limited range of a government official’s moral duty and autonomy, the civilian’s often-mistaken assumptions about the military agent’s value and the military’s often mistaken expectations of the civilian’s intent and guidance—and, perhaps most critically, the fiduciary dilemma facing an agent when his two legitimate principals demand conflicting behaviors from him.

The answer to whether someone in Vindman’s boots can or should be court-martialed is neither a straightforward yes—on the grounds that he disobeyed the president—nor is it a straightforward no—on the grounds that he swore an oath to the Constitution. The answer depends, instead, on whether a lawful disposition authority considers Vindman’s conduct relative to Congress’s subpoena order—that is, framed in terms of civilian control of the military—or whether his conduct is considered relative to the president’s order, framed in terms of obedience. Both frameworks involve various forms of duty and modes of expressing it; both carry different reasons for culpability and threaten different methods of discipline.

When the conduct of an officer is entangled with a long-standing quarrel between two political branches flexing their respective constitutional authorities, the question of what applied justice looks like is determined both by how Congress has defined a generally applicable criminal sanction and what factors the president has directed his military leaders to consider in any case. The “even-handed administration of the law,” as the president’s own court-martial prosecution guidance says, should consider the “nature, seriousness, and circumstances of the offense and the accused’s culpability.” The dynamics of the civil-military relationship, set against the backdrop of a true separation of powers crisis, characterize the nature and seriousness of the incident and provide the relevant circumstances to frame Vindman’s conduct—along with any legal response.