Lingamfelter: Feel Good Justice

By Scott Lingamfelter

When I was a battalion commander in the U.S. Army, I was entrusted with administering military justice according to the Uniform Code of Military Justice (UCMJ). It was a very serious responsibility. As part of that responsibility, I acted as a convening authority with the power to refer a case for trial by court-martial, summary, special, or general courts-martial. And in the case of the summary court-martial, I was empowered to act as both judge and jury. That was also true for what we referred to as non-judicial punishment under Article 15 of the UCMJ, a process reserved for less serious breaches of discipline.

In all of this, it was vital that I rendered impartial and fair justice as a commander. As you might expect, units with commanders who allowed indiscipline to thrive led very poor units. But the converse was also a danger. Nothing could destroy the morale and discipline of a unit more than a commander who abused his or her military authority meting out harsh and biased justice.

The things that guided me were fundamental to good order and discipline. I knew that as I administered the awesome power that the military had placed in my hands, my ultimate jury would be the soldiers who witnessed my actions. They would not be fooled by words. Their eyes were on my actions. As Ralph Waldo Emerson wrote, “What you do speaks so loudly that I cannot hear what you say.” I knew that in administering justice it was not only a trial of an accused soldier, but a trial of me. Soldiers—all soldiers—want justice and leaders who will establish that fairly. If a leader cannot be trusted to do so in peacetime, what moral authority will he retain to order men into the teeth of battle? This was always on my mind. As a result, I avoided dispensing justice flippantly, neither did I take joy in the punishments I assessed to soldiers in my care.

At this writing, the eyes of the nation are on the U.S. Senate as it pursues a second impeachment trial of—now—former President Trump. The first—only a year ago—was based on rather tenuous evidence, preceded by an investigation in the House of Representatives that made a hash of what would be considered due process, the ordered manner of justice where defendants have rights, and the burden of proof is on the accusers. Predictably that Senate trial ended in acquittal of the President.

Now the Senate is trying a former president, which is without historical or legal precedent. The impeachment article in the Constitution reserves that procedure to “remove” a sitting president from office. However, it’s quite literally impossible to use impeachment to remove a person who is no longer in office. Indeed, so unprecedented that the Chief Justice of the Supreme Court—who constitutionally presides over an impeachment trial for a sitting president—has declined to do so in the present case, because the accused is no longer in office.

That said, it is important also to remember that impeachment is not a judicial process, but rather a political one. Where else could you find a court where the sitting judge is also a member of the jury who has actually professed a public desire to convict the accused even before the trial begins? That is precisely what the president pro tempore of the United States Senate, Patrick Leahy (D-Vermont), has said. He is the one presiding over this unprecedented trial in the absence of the Chief Justice.

This second impeachment will end in the same manner as the one a year ago. There will be no conviction. But there will be much bitterness, anger, and vindictiveness. Indeed vengeance and loathing of the former president motivates Mr. Leahy and his fellow travelers.

But for the sake of argument—and argument alone—let us set aside ill motivation and look at the issue of justice. Is it just to conduct a trial beyond the clear limits of the Constitution? Is it fair to have a trial without a minute of investigation by the House of Representatives, which preferred those charges in an expedited “flash impeachment” vote days before the accused left office? Is it fair to have a judge who has publicly expressed his public desire that the accused be found guilty to preside over the trial?

In 1992 when I was attending battalion pre-command training at Fort Leavenworth Kansas, I recall the legal training we received from the military lawyer who instructed us on military justice. He said this.

“When you are administering justice and you find yourself feeling good about the punishment you are about to hand out to a soldier, stop. You are about to do something horribly wrong.”

Congress should stop. Now.

Scott Lingamfelter is a graduate of VMI and the University of Virginia Law School, a retired U.S. Army Colonel after 28 years of service, and a former member of the Virginia House of Delegates from 2002-18.

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