Guest Post: Brian Lee Cox says “Active-duty Troops Did Not Violate the UCMJ or DoD Policy Merely by Attending the ‘Save America Rally'”

Today’s post is by Cornell Law’s adjunct professor Brian Lee Cox who grapples with the fallout following what he rightly calls the “deplorable siege on the United States Capitol” last month.  Specifically, Brian focuses upon the idea that active duty members who merely attended the rally that, as he notes, “preceded the Capitol siege” violated the UCMJ or Department of Defense (DoD) policy.  Brian thinks not.

As we often say on Lawfire®, facts really do matter. And when accusations of criminal misconduct are made, the facts are–or ought to be–decisive.  What Brian does in this case is to unpack the facts and apply them dispassionately to the law, something we don’t see often enough in the media or other venues.

Parenthetically, Lawfire® readers know that I’ve long been concerned about protecting the civil liberties of disfavored persons.  In 2017, for example, I wrote “Defending My Enemy”: Will the legal profession rise to the challenge? 

Of course, Brian isn’t defending anyone, per se, but rather is, in my view, defending the process of careful factual analysis that ought to apply to everyone–to include members of the armed forces–in a country that believes not just in free speech, but also in the axiom that everyone is presumed innocent until proven guilty in a court of law. 

Unquestionably, the perpetrators of terrible events like the Capitol siege need to be vigorously brought to justice. Nevertheless, the process of doing so must scrupulously preserve civil liberties–even of those who may be widely perceived as wrongdoers.

Moreover, when public passions are at a fever pitch, a very real danger exists that accountability dragnets will wrongly sweep the innocent into their nets.  This is when everyone–but lawyers especially–needs to stand tall and insist upon the fairness of the process, and demand that facts properly applied to the law drive the dispositions.

Accordingly, I urge you to spend a few minutes considering Brian’s analysis about the culpability (or not) of those who merely attended the rally that preceded the disturbing events at the Capitol.

Active-duty Troops Did Not Violate the UCMJ or DoD Policy Merely by Attending the “Save America Rally”

Brian Lee Cox

In the wake of the deplorable siege on the United States Capitol, a significant degree of concern has been expressed regarding the potential that current or former military members may have taken part in the attack on the Capitol building. This concern is prevalent in public discourse and Congressional dispatches alike.

With the revelation that an active-duty service member, Captain Emily Rainey, attended the “Save America Rally” that preceded the Capitol siege, much of the present debate involves what form of discipline, if any, may be imposed against service members as a consequence of attending the demonstration.

If the facts that are currently being reported regarding Rainey’s activities in relation to the rally turn out to be accurate, the answer to this question is short and simple: none.

This is so because nothing that has been reported thus far indicates that Rainey or any other active-duty service member violated local law, the punitive articles of the Uniform Code of Military Justice, or any regulation that could lead to the imposition of adverse administrative action.

As the investigation continues and additional facts are discovered, this conclusion may of course change. But for now, there is no indication that any active-duty service member – including Rainey – violated applicable law or policy by attending the rally.

Distinguishing Between the “Save America Rally” and the Capitol Siege

What is known – as reported by the Associated Press after interviewing Captain Rainey – is that she “led 100 members of Moore County [which adjoins Fort Bragg, North Carolina] Citizens for Freedom, which describes itself online as a nonpartisan network promoting conservative values, to the Washington rally to ‘stand against election fraud’ and support Trump.”

In that story, the AP reports that Rainey asserted that at the time of the rally, “I was a private citizen and doing everything right and within my rights.”

In that last assertion, Rainey gets one thing wrong and, it appears, gets one thing right. First, Rainey is incorrect to assert that she was a “private citizen” at the time of the rally. As the AP story reports, Rainey was still on active duty even though she had already resigned her commission months before the rally.

Rainey may have attended the rally in her personal capacity, but she was still an active-duty service member subject to the UCMJ and not a “private citizen.” Nonetheless, thus far it appears that she is correct to assert that she was “doing everything right and within my rights.”

Now, to be very clear – every indication is that Rainey had no involvement whatsoever in the Capitol siege. The rally, which reportedly thousands of people attended, occurred prior to the siege – but the siege is attributable only to those who incited the breach or actually participated in it.

Sensationalist reports may suggest that “Rainey was in attendance at the US Capitol Hill protests that resulted in the death of five people,” but such reporting is misleading in that it attributes responsibility for the despicable Capitol siege to everyone at the protest just by virtue of being at the rally.

Contrary to this misleading narrative, Rainey reportedly was not involved in storming the Capitol. According to Rainey, her group was made up of “peace-loving, law-abiding people who were doing nothing but demonstrating our First Amendment rights” and she doesn’t “know any patriots who would smash the windows of a national jewel like the (Capitol).”

These are the facts that are known to the public at this time. Captain Emily Rainey is on active-duty and assigned to Fort Bragg, North Carolina pending release from the military. She attended the “Save America Rally” after telling her chain of command she was going. Rainey organized a group of approximately 100 people to attend the protest and she “didn’t advertise that she was an Army officer” while she was there. By all accounts, she had no involvement with the Capitol siege.

Based on these facts, the Associated Press story that first reported Rainey’s involvement in the protest indicates that it is still “unclear if Rainey’s participation with her group on Wednesday went against DOD policy.” Unless the ongoing investigation develops additional facts, the issue is not actually “unclear” at all: Rainey’s involvement did not violate DoD policy or the UCMJ.

This is a conclusion I reach in contradiction to the opinions expressed by two legal scholars, Professors Rachel VanLandingham and Eugene Fidell, for whom I have the utmost regard. However, on this matter, I must respectfully disagree.

Applying DoD Policies and the UCMJ

For both of my esteemed fellow military justice scholars, the potential for punitive action seems to be that Emily Rainey organized the group that traveled from North Carolina to DC for the protest. As Fidell notes, “If you’re the organizer, you are exercising the leadership role. That does create a problem with” DoD Directive 1344.10. On this point, VanLandingham seems to agree, noting, “It sounds like she was leading, and that’s where the real problem is going to come in.”

While it seems that both professors are correct to conclude that Rainey performed a “leadership role” in organizing a group that attended the rally, it is less clear how doing so might violate DoD policy. Service members are not allowed to “participate in partisan political…rallies,” but in this context prohibited “participation includes more than mere attendance as a spectator.”

In a separate piece co-authored by Fidell and VanLandingham and posted on Just Security, the professors expand on their analysis asserting that active-duty personnel may have violated the UCMJ by attending the protest. However, by my assessment their analysis both misconstrues the relevant DoD policy and conflates mere attendance at the rally with participating in the Capitol siege.

The DoD policy involving dissident and protest activities prohibits service members from attending or participating in demonstrations off of military installations if the activities “constitute a breach of law and order” or “violence is likely to result” of the demonstration. If any service members were aware that the “Save America Rally” would give rise to the Capitol siege, this could constitute a violation of the policy.

However, attending a demonstration that (then) President Trump promised “will be wild” is not in itself enough to conclude that Emily Rainey or any other service member was aware that the rally would “constitute a breach of law and order” or that violence was “likely to result” from the demonstration.

Applied to what is publicly known of Rainey’s conduct specifically, there is no reason to conclude that she violated DoD policy merely by organizing a group to travel to DC and thereby “exercising the leadership role.” If Rainey had participated in organizing the rally, the analysis might be different.

Even assuming that some of Rainey’s group were also military members, “organizing” or “leading” the group to engage in activity they are all allowed to do – merely attending the protest – is not the same as “leading” or “organizing” the actual partisan political rally. As such, it is difficult to support the conclusion that this type of “leadership” role is “where the real problem is going to come in.”

It is also not clear, based on the known facts, that Rainey or any other active-duty military member violated punitive UCMJ provisions such as Article 88 (contempt toward officials) or Article 94 (sedition). Likewise, it is unlikely that Article 133 (conduct unbecoming an officer) or Article 134 (general article) would apply based on the known facts since the conduct in question – merely attending a political rally – is explicitly permitted by DoD policy and, therefore, not unbecoming an officer (Art. 133) or prejudicial to good order and discipline or service discrediting (Art. 134).

Members of Congress, Political Climate, and Unlawful Influence

In short, there is currently no indication that Captain Emily Rainey or any other active-duty service member violated DoD policy or any punitive article of the UCMJ by simply attending – or organizing a group to attend – the “Save America Rally.”

Even though Congressperson Ruben Gallego has suggested that Rainey “needs to be removed from her job” on the basis that she is “stupid enough to fall for this bs” [presumably then-President Trump’s claims of election fraud], it is unclear what provision of applicable law or policy a service member violates simply on the basis that a member of Congress thinks she is “stupid.”

If investigations do ascertain that active-duty service members actually were involved in the Capitol siege, it is very likely that those troops will face the prospect of severe punishment since the worst possible charge, sedition, carries a possible maximum sentence of death.

Even so, if any service member is found to have participated directly in the siege and court-martial proceedings are initiated, members of Congress have handed any potential future defense team a preemptive gift by making public remarks suggesting that it “would be a disgraceful insult” if troops were found to have participated in the siege and demanding that such troops “should have the book thrown at them” by military officials.

These assertions may well be true, but such comments coming from members of Congress create a potential “political climate that can lead to unlawful influence and therefore can be incredibly problematic from a military justice perspective.

Nonetheless, so far there is no indication that any active-duty service member violated applicable law or policy just by attending the “Save America Rally.” For now, this is true of Captain Emily Rainey as well – even if she helped organize and lead a road trip to Washington, DC.

About the author: 

Brian L. Cox is an adjunct professor of law at Cornell Law School and a visiting scholar at Queen’s Law in Ontario. Brian retired in 2018 from the U.S. Army after 22 years of military service. He served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and for seven years as a military legal advisor. His combat deployments include Iraq from 2003-2004 as a combat camera operator and Afghanistan from 2013-2014 as the chief of international and operational law for Regional Command-East in Afghanistan.

Brian also served as a military prosecutor, federal prosecutor, brigade judge advocate, and military magistrate while he was a military legal advisor. His military awards, decorations, and qualifications include the Ranger Tab, Senior Parachutist Badge, Pathfinder Badge, Air Assault Badge, Bronze Star Medal, Meritorious Service Medal, Basic and Advanced Collateral Damage Estimation Certification, and Joint Firepower Certification. Brian holds an LL.M. from Queen’s Law and a B.A. (International Relations) and J.D. from the University of North Carolina.

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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