NYT on Potential “Unlawful Command Influence”

Today’s NYT reports on how the President’s remarks calling for military service members accused of sexual assault to face stiff consequences is creating problems for the prosecution of sexual assault cases in the military.  As I noted last month, the President made a speech saying those accused of sexual assault in the military should be “prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”  The problem with these remarks is that the President is the Commander-in-Chief, and his call for the imposition of specific punishments — a dishonorable discharge, in particular — can be viewed as an improper effort to influence the proceedings.  From the NYT:

In at least a dozen sexual assault cases since the president’s remarks at the White House in May, judges and defense lawyers have said that Mr. Obama’s words as commander in chief amounted to “unlawful command influence,” tainting trials as a result. Military law experts said that those cases were only the beginning and that the president’s remarks were certain to complicate almost all prosecutions for sexual assault. . . .

“His remarks were more specific than I’ve ever heard a commander in chief get,” said Thomas J. Romig, a former judge advocate general of the Army and the dean of the Washburn University School of Law in Topeka, Kan. “When the commander in chief says they will be dishonorably discharged, that’s a pretty specific message. Every military defense counsel will make a motion about this.”

At Shaw Air Force Base in South Carolina last month, a judge dismissed charges of sexual assault against an Army officer, noting the command influence issue. At Fort Bragg in North Carolina last month, lawyers cited the president’s words in a motion to dismiss the court-martial against Brig. Gen. Jeffrey Sinclair, who is accused of forcing a lower-ranking officer to perform oral sex on him, among other charges.

In Hawaii, a Navy judge ruled last month that two defendants in sexual assault cases, if found guilty, could not be punitively discharged because of Mr. Obama’s remarks. In Texas, a juror was dismissed from a military panel on a sexual assault case after admitting knowledge of the president’s words. In Alexandria, Va., Eric S. Montalvo, a former defense counsel in the Marine Corps who is now in private practice, has cited the president’s words in motions to dismiss two sexual assault cases, one against an Army sergeant and the other against a Navy seaman.

“Because the president is the commander in chief, it’s going to come up in basically every imaginable context in sexual assault cases,” said Eugene R. Fidell, who teaches military justice at Yale Law School.