Counsel for Earle Partington today filed this post-argument memorandum with the D.C. Circuit arguing that R.C.M. 109’s use of the term “other lawyers” (as in the Judge Advocate General may discipline judge advocates and “other lawyers”) doesn’t include civilian counsel appearing at courts-martial.
The post-argument memorandum contends that subjecting civilian counsel to discpline by a Judge Advocate General exceeds the scope of the President’s delegated authority under Article 36 (which the memorandum misquotes) because that article is limited to the adoption of pretrial, trial, and post-trial procedures “for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals.” Partington reasons that his disciplinary proceeding isn’t a miltiary tribunal under the UCMJ and that, in any event, he isn’t subject to UCMJ jurisdiction pursuant to Article 2.
That misses the point. The relevant procedural rule governs who may appear as counsel in a court-martial to represent the accused. Congress delegated to the President the authority to answer that question. As a result of the disciplinary proceedings against Mr. Partington, he may not represent the accused in a naval court-martial. So by authorizing the Judge Advocate General to suspend a lawyer from court-martial practice (or impose other forms of discipline), the President was adopting a procedural rule for cases being tried by courts-martial. Hence, R.C.M. 109 was adopted pursuant to the President’s delegated power under Article 36.