In the Law Week Colorado article “Joint Chiefs Remind Nation’s Armed Forces of Duty,” Faegre Drinker corporate partner Jeff Sherman, who also has experience serving as an officer in the JAG Corps of the U.S. Army Reserve and as staff judge advocate of the Wyoming Army National Guard, discussed potential legal consequences for military members who participated in the Capitol riot.
Sherman said participation in the riot would be a punishable act for a member of the military. “Depending on a person’s role, they could be subject to both civilian charges and potential court martial” under the Uniform Code of Military Justice, he explained.
“The Uniform Code of Military Justice prohibits using contemptuous words toward certain elected officials,” Sherman said. If a soldier uses “contemptuous words toward elected officials” in spreading disinformation, “that is illegal and can be prohibited and punished.”
According to Law Week Colorado, while members of the U.S. Armed Forces can engage in political activities, the Uniform Code of Military Justice imposes limits. The reason, Sherman said, is that the military is not an agent of any political party or agenda. “I think it’s important that the public perceive us and know us to be a non-partisan organization that is loyal only to the Constitution and to our mission and not to any particular person,” he said.
The basic question for a commander, Sherman noted, is whether a serviceman or servicewoman’s actions create a risk to the cohesion of a military unit. A commander needs to “balance soldiers’ constitutional right to free expression with the good order and discipline of the military organization,” he said. “A commander has certain tools at his or her fingertips to do that, but it’s tough to draw that line.”