The saga of Sergeant Bowe Bergdahl has inspired much discussion among lawyers and laypersons alike. This blog has covered the Bergdahl case’s development assiduously. A particularly animated discussion has developed around the question of whether the President’s commentary regarding the case has impermissibly tainted the military justice system’s ability to afford Sergeant Bergdahl a fair trial.
In an effort to reassure the public that the military justice system is made of sterner and more independent stuff than its critics might suppose, the White House recently issued a missive declaring:
The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations.
This blog characterized that press release as being a “predictable statement of the obvious.”
A recent article by University of New Mexico Law Professor Joshua Kastenberg offers a vantage point from which to observe the unfolding controversy. His article in the Southwestern Law Review is entitled Command Responsibility in the Twenty First Century: The United States Basic Framework and Future Military (and Quasi-Military) Operations, 46 Sw. L. Rev 379 (2017). The article describes the character of Presidential command authority, the obligations that come with it, and the means of making a President accountable for it.
The President is constitutionally obligated to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, Sec. 3, cl. 5. Professor Kastenburg posits that “it must be assumed that this provision covers all laws.” Command Responsibility at 395. That would, presumably, include the duty to see the UCMJ faithfully – read impartially – executed.
The means to enforce a President’s duty of faithful execution are few – indeed, there may be only one. “[E]ven while serving in the capacity as commander in chief, [the President] is not amenable to the UCMJ’s jurisdiction.” Command Responsibility at 394. Whether a sitting President can be criminally prosecuted at all, even for civil crimes and in the civil courts, “is an unknown, based on several constitutional ramifications.” Command Responsibility at 395, fn. 89. Even civil liability is not a certainty. In a motion to dismiss a civil suit in a State of New York court concerning conduct which allegedly occurred prior to the President assuming office, the President’s lawyers recently asserted:
[T]his Court lacks the authority pursuant to the Supremacy Clause of the Constitution to exercise jurisdiction in this case because a state court cannot control President Trump – who uniquely embodies the Executive Branch – or interfere with his ability to perform his duties.
Memo. Of Law in Support of Motion to Dismiss and Srike Complaint, Zervos v. Trump (N.Y. Sup. Ct. 7 Jul 2017).
All of that aside, a President is subject to impeachment proceedings. Command Responsibility at 395. Indeed, impeachment proceedings were launched against President Johnson after the Civil War because Congress believed he had abused his authority as commander in chief. Specifically, the President had disregarded Congress’ Command of the Army Act, which forbade him from exercising direct command over military forces. That alleged wrong was among the impeachment allegations passed by the House of Representatives to the Senate in 1868. That historical example might lead a person to argue that even patently unconstitutional laws constraining the President’s exercise of command authority can form the basis of proper impeachment proceedings. As Professor Kastenberg explains, “the liability of a president under either the Constitution’s impeachment process, or other avenues of accountability is not only a legal question, it also presents a political question.” Command Responsibility at 395.
All in all, Professor Kastenberg’s article led at least this reader to wonder whether, even if it were determined that the President’s commentary regarding the Bergdahl case somehow ran afoul of his obligation to take care to faithfully (and impartially) execute the UCMJ, the remedy is to be found in the halls of Congress, not a courtroom. If a remedy must be fashioned, Congress’ power of impeachment is likely the only tool available. Whether the alleged misstatements of this President regarding the case of an admitted deserter warrants the use of that draconian tool is a non-justiciable political question.