Congressman Wilson and the twittersphere. — Court-Martial Trial Practice Blog

Quite a few people are twittering and blogging about Congressman Joe Wilson’s recent behavior during the President’s speech to Congress. The basic claim is that he is subject to court-martial. Maybe, maybe not.

Here is what he has on his biography on his official site:

Throughout his life, Joe has also had a tremendous passion to serve his country as a member of the United States Armed Forces. After serving in the United States Army Reserves from 1972-1975, he also served in the South Carolina Army National Guard. In the summer of 2003, Joe retired as a Colonel, having served as a Staff Judge Advocate assigned to the 218th Mechanized Infantry Brigade. At the time, he was the only active Guard member serving in Congress.

It is true that under Article 88, UCMJ, a person can be prosecuted under the UCMJ for certain types of behavior toward:

[T]he President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present[.]

I do not see an exception for protected speech such as that by a public official in certain circumstances: e.g. while acting in an official capacity as a Representative in a matter related to his representative duties. While we might, or might not, agree with his behavior, I think this would be his defense if the case ever went to a trial.

However, the National Guard would need to get jurisdiction over him. For a retired active duty officer there could be a recall. Remember this issue came up when various retired senior officers were critical of President Bush. Whether a recall would be appropriate would be a matter of discretion. Reserve and Guard retirees may be different in terms of the ability to recall them to duty for the purpose of court-martial or administrative action. Congressman Wilson’s situation is a little different in terms of jurisdiction and ability to take adverse administrative actions where the person has not yet retired or separated from the Guard or Reserve. Remember this was an issue with Governor Sanford and his AF Reserve status, about which I noted here.

So, here’s the legal question: Can a retired Guard person be recalled to “duty” to obtain jurisdiction for the purpose of court-martial or adverse administrative action? That’s a different question than whether or not it would be a good idea.

Svobodna says:

September 13, 2009 at 6:38 pm

It may not matter that Joe Wilson is/was Army National Guard as opposed to Army Reserves. He is not in some “SC Militia”. He holds a commission in the U. S. Army Reserves. His retired pay check is issued by DFAS, just as any other retiree. If the Secretary of Defense decides to activate this guy, it is questionable whether or not the governor would be able to intervene. And given the governor’s current circumstances, would he? After all, the entire party leadership in SC has formally requested his resignation. He just might be willing to grease Colonel Chickenhawk’s skids.

ParatrooperJJ says:

September 30, 2009 at 7:59 am

For a reservist or guardsmen to be recaalled to active duty for the purpose of court martial, doesn’t the potential punishment have to be five years or more? Or does that just apply to discharged soldiers?
The more important legal protection though is the Constitution’s speech and debate clause. Since the Congress was in session and Wilson was on the floor of the House, any speech he made was protected. This would overide any UCMJ actions.

Phil Cave says:

October 6, 2009 at 5:11 pm

ParaT thanks for the comment:
Agree the speech and debate clause, ergo the point that this would likely be a defense (and a reason he wouldn’t be recalled).
Recall under Article 2, UCMJ, does not specify the sentence severity as a reason for recall. But that should certainly be a discretionary factor in deciding whether it is worth it. That also may be why there are few retiree or Reserve recalls (although I did such a case earlier this year for a discharged reservist).
Cheers.