Did the President’s Remarks Constitute “Unlawful Command Influence” on Military Sentencing?

The President is, among other things, the Commander-in-Chief of the military. So if a President makes comments that could be interpreted as applying to cases pending in military courts, could those comments constitute “unlawful command influence”? Perhaps so. Stars and Stripes reports that President Obama’s remarks urging stern sanctions for members of the military found guilty of sexual assault were deemed to constitute “unlawful command influence” on sentencing in a military court.

Navy Judge Cmdr. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes. . . .

“The bottom line is: I have no tolerance for this,” Obama said, according to an NBC News story submitted as evidence by defense attorneys in the sexual assault cases.

‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”

The judge’s pretrial ruling means that if either defendant is found guilty, whether by a jury or a military judge, they cannot receive a bad conduct discharge or a dishonorable discharge. Sailors found guilty under the Uniform Code of Military Justice’s Article 120, which covers several sexual crimes including assault and rape, generally receive punitive discharges.

As the story notes, this ruling could have an impact on many sexual assault cases throughout the military. This would mean that the President’s comments urging stiff punishments could actually force military courts to impose less severe sentences. Yet as the story also notes, military courts have not looked favorably on such “unlawful command influence” arguments in the past, “under the logic that statements by high-level officials lose their effect as they reach the military’s lower levels.”

UPDATE: Politico has more here.

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