Posted on Jan 8, 2021
Are service members that are also elected officials protected if they speak out on something that would be covered by Article 88?
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I saw in an article that Rep. Adam Kinzinger called for the use of the 25th amendment to remove the president.
He’s currently still in the NG. The comment section of the article was blown up saying he’s a traitor and should be brought to court martial and kicked out.
Is he protected? Can he get in trouble?
He’s currently still in the NG. The comment section of the article was blown up saying he’s a traitor and should be brought to court martial and kicked out.
Is he protected? Can he get in trouble?
UCMJ
Democracy
Democrats
Republicans
Congress
Posted >1 y ago
Responses: 11
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First, members of the NG are not subject to the UCMJ unless on federal duty. Second, as a Congressman, he cannot be held to answer for any speech related to his duties in any place other than Congress. In other words, no, he cannot be charged.
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Generally speaking, anything that a member of Congress says during a speech or debate in Congress is protected by the U.S. Constitution from lawsuits and criminal prosecution. This immunity is covered in Article I, Section 6, and is known as the "Speech and Debate Clause". I can only assume it protects them from UCMJ as well.
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SSG Dale London
MSG Stan Hutchison - You and I are obviously on opposite sides of this particular argument. Why don't we just agree to disagree and move on?
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SSG Dale London
Capt Gregory Prickett has blocked me for some reason so I cannot directly speak to his comment. But the speech and debate clause only applies "during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House." This is directly from the Constitution. Members of Congress are only protected in their speech while on the floor, so in this instance he is incorrect.
Regarding whether National Guard officers are subject to Article 88 of the UCMJ while not on active service -- I bow to his superior knowledge of the law.
As for why he has blocked me -- I have no idea. But to refer to me merely by my last name is rather low. He could have called me "SSG London" or "Capt London" (as I have held that rank also) or "Revd London" or even "Dale". But merely referring to me as "London" smacks of a snobbishness that I find surprising in this forum.
I will retract the "treasonous" part of my original comment -- Article I, Section 6 of the Constitution specifically exempts treason from this protection. I was being hyperbolic.
Regarding whether National Guard officers are subject to Article 88 of the UCMJ while not on active service -- I bow to his superior knowledge of the law.
As for why he has blocked me -- I have no idea. But to refer to me merely by my last name is rather low. He could have called me "SSG London" or "Capt London" (as I have held that rank also) or "Revd London" or even "Dale". But merely referring to me as "London" smacks of a snobbishness that I find surprising in this forum.
I will retract the "treasonous" part of my original comment -- Article I, Section 6 of the Constitution specifically exempts treason from this protection. I was being hyperbolic.
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Capt Gregory Prickett
Case law on the Speech and Debate Clause is very clear, it is not limited to comments made on the floor of the House or Senate. I didn't cite the exact cases because it wasn't that important.
I called you London because that is your name. If I were going to be insulting, believe me, you would know it. I would expect you to call me Greg or Prickett. Its a name, that's all.
I called you London because that is your name. If I were going to be insulting, believe me, you would know it. I would expect you to call me Greg or Prickett. Its a name, that's all.
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SSG Dale London
I've only just seen the above comment so please do not construe the delay in my response as churlishness. I am happy to call a truce if you are but I would very much appreciate being told what it was I did to warrant being blocked.
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Suspended Profile
UCMJ *generally* only applies to NG when they’re in federal status. Most states have a mirror version of UCMJ enforceable on traditional Guardsmen at any time but I have to assume there is some verbiage or command discretion to be reasonable about things like this.
Suspended Profile
1SG (Join to see) thanks for the info. I’d hope that commanders would use their discretion either way. Not allowing a congressman to congress seems shitty.
SFC Melvin Brandenburg
I had a soldier who was being beaten by her husband who was a SFC in another unit. I pressed the issue but unless the assaults happened on his drill weekend there was nothing that could be done to the guy because the state version of UCMJ only applied when in a drilling status. So, myself and another soldier, between drills, paid a visit and "spoke" with the guy. A few times. The beatings stopped.
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