Pavan S. Krishnamurthy & Javier Perez[*]

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I.   Introduction

On June 3, 2020, General (ret.) James Mattis addressed protesters who were physically dispersed from Lafayette Square to facilitate what he considered to be a photo opportunity by President Trump at St. John’s Church in The Atlantic:

I have watched this week’s unfolding events, angry and appalled . . . . The protests are defined by tens of thousands of people of conscience who are insisting that we live up to our values—our values as people and our values as a nation. . . . When I joined the military, some 50 years ago, I swore an oath to support and defend the Constitution. Never did I dream that troops taking that same oath would be ordered under any circumstance to violate the Constitutional rights of their fellow citizens—much less to provide a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside. . . . Donald Trump is the first president in my lifetime who does not try to unite the American people—does not even pretend to try. Instead he tries to divide us. We are witnessing the consequences of three years of this deliberate effort. We are witnessing the consequences of three years without mature leadership.^[1]

Gen. (ret.) Mattis was not alone in his condemnation. An unprecedented number of retired Generals, Admirals, and other high-ranking military leaders have recently spoken out in public criticism of President Trump.^[2] Given their position as leaders both on and off the battlefield, one would be forgiven for assuming that a retired officer could make such statements with impunity. However, following the Supreme Court’s denial of certiorari in Larrabee v. United States,[3] which allowed a circuit court decision finding that retired service members could still be court-martialed for crimes that they commit during their retirement to stand,^[4] it is clear that Gen (ret.) Mattis is still potentially subject to criminal prosecution under the Uniform Code of Military Justice (UCMJ).[5] Unclear, though, is whether Gen (ret.) Mattis’s statement constitutes a crime under the UCMJ in the first place. Gen (ret.) Mattis made these statements against the backdrop of Article 88 of the UCMJ, which provides in relevant part that:

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.[6]

The ambiguity behind what qualifies as “contemptuous speech” under Article 88 raises constitutional questions regarding the free speech rights of both active and retired military officers during a time of heightened partisan discourse and uncertainty regarding the role of the U.S. military.[7] This Article proceeds in four parts. Part II reviews speech theory generally and situates it in the context of service members. Part III interprets Article 88 of the UCMJ and reviews prohibited contemptuous speech jurisprudence in order to develop an understanding of the provision’s scope under the current legal regime. Part IV reviews recent statements by retired Generals and Admirals and analyzes whether they should be considered contemptuous. Part V advocates for an exception to Article 88 of the UCMJ for retirees. The conclusion follows.

[*] Captain, Assistant Staff Judge Advocate, 316th Wing, United States Air Force. B.A. 2012, Northwestern University; MSc 2014, London School of Economics; J.D. 2017, Georgetown University Law Center.

Captain, Assistant Staff Judge Advocate, 316th Wing, United States Air Force. B.A. 2016, University of Texas – Austin; J.D. 2019, South Texas College of Law – Houston.

[1] Jeffrey Goldberg, James Mattis Denounces President Trump, Describes Him as a Threat to the Constitution, The Atlantic (June 3, 2020), https://www.theatlantic.com/politics/archive/2020/06/james-mattis-denounces-trump-protests-militarization/612640/ [https://perma.cc/Z4ZB-KNHF].

[2] See Veronica Stracqualursi, The Prominent Former Military Leaders Who Have Criticized Trump’s Actions Over Protests, CNN (June 5, 2020, 6:17 PM), https://www.cnn.com/2020/06/05/politics/military-leaders-trump-floyd-protests/index.html [https://perma.cc/97VJ-SXPQ] (detailing public statements by former military leaders, including Marine Corps General (ret.) James Mattis and Air Force General (ret.) Richard Myers).

[3] 139 U.S. 1164 (2019).

[4] See id.; Patricia Kime, Supreme Court: Retirees Can Be Court-Martialed for Crimes Committed After Service, Military.com (Feb. 22, 2019), https://www.military.com/daily-news/2019/02/22/supreme-court-retirees-can-be-court-martialed-crimes-committed-after-service.html [https://perma.cc/CE46-SUGW] (arguing that, by the Supreme Court not accepting the case, “the court upheld the status quo: that military retirees are subject to the Uniform Code of Military Justice”). While denial of certiorari means at least four Justices deemed review unwarranted, at least one commentator suggests that a denial is, in effect, a policy choice.  Peter Linzer, The Meaning of Certiorari Denials, 79 Colum. L. Rev. 1227, 1229 (1979) (arguing that in “significant number of cases” the denial of certiorari indicates that most of the “Justices were not strongly dissatisfied with the actions” of the lower court’s ruling).

[5] Uniform Code of Military Justice (codified at 10 U.S.C. §§ 801–946(a)).

[6] UCMJ art. 88 (codified at 10 U.S.C. § 888 (2006)).

[7] See, e.g., Ronald O’Rourke, Cong. Rsch. Serv., R43838, Renewed Great Power Competition: Implications for Defense—Issues for Congress (2021).