09 July 2020

Justice Delayed

I'm not going to lead with my idiosyncratic take on the Court's end-of-term decisions this morning. There's something much more important to write first relating to much-farther-reaching implications for the conduct of government, and perhaps for the survival of the Republic.

09 July 2020

to    Hon. Ryan D. McCarthy, Secretary of the Army

        Gen James C. McConville, Chief of Staff, United States Army

info Hon. Mark Esper, Secretary of Defense

        Hon. Sean O'Donnell, Inspector General (Acting), Department of Defense

        Gen Joseph M. Martin, Vice Chief of Staff, United States Army

        Lt Gen Thomas Seamands, G–1 (DCS Personnel), United States Army

re    Systematic Leadership Failure

Dear Sirs

I am terribly disappointed, but not terribly surprised, at the leadership failure at senior levels of the Department of Defense and United States Army in allowing the intimidation, bullying, and loss of service to the nation of an officer selected for promotion who did his duty. In his own words, he will be fine; but the question shouldn't even come up. I am less confident that the nation and the next generation of military leaders will be fine.

It is your job to ensure that those who are qualified for promotion to more-senior positions are promoted, free from outside interference. You have not succeeded in that tasking. Each of you must consider exactly what that means to the officers of today and of tomorrow. Each of you must further consider the permanent damage to the oath of commissioning — that one's duty is to support and defend the Constitution of the United States against all enemies, foreign and domestic — that this fiasco has done and will do in the future. Each of you must consider whether orders you have been given (however couched) regarding this matter are lawful, and how to respond personally to those orders. Each of you must consider what the treatment of Lt Col (P) Vindman — ratified through your silence — will mean to those who later must choose whether to speak truth to power outside of a combat-imminent situation.

Each of you must also consider a significant structural reform to the Defense and Army personnel systems, and advise the other services of your considerations and conclusions. There is no place for the insult of so-called "rehabilitative assignments" for commissioned officers. Commissioned officers, by definition, have the special trust of the institutions of the Congress and the Presidency — if not always of specific individuals holding those offices. The term "rehabilitative assignment" (and any synonyms) disgraces both that special trust and the oath itself. It is fundamentally dishonest to pretend that political friction will not occur, and that such friction cannot result in career casualties. It is at least equally dishonest, however, to pretend that any "rehabilitation" can be accomplished by a later demonstration of super-loyalty by an individual accorded the special trust of a commission, let alone in the field grades or as a senior officer (with the individual confirmation of promotion by the Senate involved). Burying the "disloyalty" under a more-recent glowing performance report is at best counterproductive, and reflects a fundamental failure of the personnel system to match capabilities with responsibilities. The personnel system should not, and in the long run cannot, tolerate this, and needs to reform its traditions, its structures, and its attitudes. That none of the services have done so since those shameful hearings in 1986 reflects poorly upon both the services themselves and the integrity of those responsible for them.


A Citizen (who took that same oath)

The Vindman fiasco is linked directly to all four decisions of the Court this morning. The overt common theme is the difference between stated limits on the power of an office or person in the Constitution and the practical ability to evade those limits, particularly for personal advantage. The less-obvious common theme… we'll get there.

The two opinions on "The Res" can be discussed quickly, precisely because the class of persons directly affected is… not in the public view. McGirt (No. [20]18–9526 (PDF, Gorsuch 5–4)) held that the parts of Oklahoma set aside for the Creek Tribe by nineteenth-century treaty remain "Indian country." And that has consequences: Certain enumerated crimes, including (as in this instance) certain sex offenses, allegedly committed by enrolled Tribal members in "Indian country" cannot be tried in state courts, but must be tried excusively in federal courts (or, depending upon certain other circumstances, tribal courts, but that doesn't appear to be at issue in McGirt). McGirt himself has been protesting that the State of Oklahoma had no authority to try him in its courts — which, being polite after having been stationed there, are not renowned for their evenhandedness — and wants a federal retrial. Justice Gorsuch for the Court "hold[s] the Government to its word," and agrees that McGirt was not subject to state-court proceedings. This does not mean exoneration per se; it means retrial, in a court with actual jurisdiction, after further delay.

Things began to get murkier a few minutes later, though, as Vance (No. [20]19–635 (PDF, Roberts 5–2–2)) was announced. Chief Justice Roberts held that grand jury subpoenas for certain documents concerning the individual currently holding the office of President of the United States were not categorically improper… and sent the matter back down for further consideration by the courts below, with some guidance on what to consider. Which will mean at least one more set of appeals, and probably two: One for determining whether the subpoenas are proper under the rubric announced today, and one further when that individual and/or a family member demonstrates the contempt in which he or she holds the judicial system by refusing to comply.

The murk became sticky center-channel silt and mud after another few minutes when Mazars (No. [20]19–715 (PDF, Roberts 7–2)) was announced. The structure of the opinion is similar, as is the reasoning: Congress does have the right to issue subpoenas for records like these, but there needs to be a more-specific showing of need preceded by at least an attempt at a "negotiated solution" between the branches of government before entangling the courts in a fight between branches of the government. In particular, the Court admonishes the House to both ensure that it has exhausted all other ways of obtaining the materials it needs for its legislative purpose (slip op. at 12) and to consider more creative options than blanket turnover of materials (slip op. at 9, a particularly pointed suggestion in this context). The end result is that the House has the theoretical power to demand these documents, but must engage in the equivalent of "administrative exhaustion" before involving the courts with subpoena enforcement.

In the eyes of the guilty (or even just self-doubting) defendant, justice delayed is justice. That's what we've seen here. Justice for Lt Col (P) Vindman will require "rehabilitation" (and waiting for the system to admit it was wrong); Mr McGirt gets to be retried; the individual holding the office of President gets to keep his papers to himself for longer, realistically until after the November 2020 elections (more probably until not earlier than March 2021, and with decent litigation strategy a year after that).

And so it goes.