The U.S. Code of
of the death penalty
for mutiny, sedition,
and failure to
suppress or report a
mutiny or sedition.'
The American Spark
What Awaits Service-Members Who Joined Jan. 6th Coup Attempt?
By Cliff Montgomery - Mar. 31st, 2021
On Jan. 6th, Trump supporters tried and failed to perpetrate a coup for their ‘great leader’, who has proven
himself incapable of winning a popular vote in this country by fair and square means.
It soon became clear “that current and former military service-members were among the participants in the
unrest,” declared a study on the issue released by the Congressional Research Service (CRS) shortly after
the failed coup.
It is a serious matter.
“The rights of freedom of speech and assembly do not give anyone the right to resort to violence, sedition and
insurrection,” stated the Joint Chiefs of Staff in a startling letter released on Jan. 12th to service-members.
The CRS study was created to inform U.S. Congress members of “potential violations of the Uniform Code of
Military Justice (UCMJ), codified in Title 10 of the U.S. Code, those service-members may have committed”
during their participation in the illegal attack, according to the report.
It is a short but very informative read. Check out the entire study for yourself, if you like.
Below, the American Spark quotes the major sections of the CRS report:
“After the unrest at the U.S. Capitol on January 6, 2021, sources reported that current and former military
service-members were among the participants in the unrest.
“These reports prompted several Members of Congress to ask the Department of Defense to investigate
service-members’ participation and [to] take disciplinary action. The military is investigating whether any
active-duty service-members participated in the unrest, and the Joint Chiefs of Staff issued a memorandum
condemning the ‘violent riot’ and actions ‘that were inconsistent with the rule of law.’
“This Legal Sidebar examines potential violations of the Uniform Code of Military Justice (UCMJ), codified in
Title 10 of the U.S. Code, those service-members may have committed. The Sidebar begins by discussing
which current and former service-members are subject to the UCMJ.
“It then examines offenses under the UCMJ that current or former service-members may have committed on
January 6, 2021, including potential sentences for each offense. It concludes with several considerations for
Individuals Subject to the UCMJ
“Article 2 of the UCMJ specifies which persons fall under the UCMJ’s jurisdiction. Besides active-duty service-
members, certain retired service-members, civilians, and enemy prisoners of war are also subject to the UCMJ.
“Three categories appear most relevant to the events of January 6, 2021:
- Active-duty service-members, including (1) members of a regular component of the Armed Forces,
including those awaiting discharge; (2) cadets, aviation cadets, and midshipmen; and (3) members of
the National Oceanic and Atmospheric Administration and Public Health Service, when assigned to and
serving with the Armed Forces;
- Retired members of a regular component of the Armed Forces who are entitled to pay; and
- Members of the Fleet Reserve and Fleet Marine Corps Reserve—enlisted members of the Navy and
Marine Corps who (1) served more than twenty but fewer than thirty years; (2) are no longer on active
duty; and (3) receive retainer pay.
“In general, members of the reserve components and National Guard are not subject to the UCMJ unless
called to federal duty.
Potentially Relevant UCMJ Offenses
“This section examines UCMJ offenses that current and former service-members may have committed during
the unrest at the Capitol. [...]
“Although not discussed in this Sidebar, the UCMJ also prohibits inchoate offenses like attempts, conspiracy,
and solicitation to commit the offenses examined below, as well as subsequent actions like evading arrest,
making false statements, and obstructing justice.
“Unless otherwise noted, each offense may be punished ‘as a courtmartial may direct,’ which could include a
fine, imprisonment, a reduction in pay grade, or a punitive discharge.
Crimes Against Government Authority
“The UCMJ prohibits a number of crimes against government authority:
- Mutiny or Sedition—Article 94 of the UCMJ prohibits (1) mutiny; (2) sedition; and (3) the failure to
prevent, suppress, or report mutiny or sedition.
As relevant to the unrest at the Capitol, a person who, ‘with intent to cause the overthrow or destruction
of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance
against that authority is guilty of sedition.’
In addition, any person who ‘fails to do his utmost to prevent and suppress a mutiny or sedition being
committed in his presence’ or fails to report to the proper officer a mutiny or sedition ‘which he knows or
has reason to believe is taking place’ is guilty of a failure to report or suppress a mutiny or sedition.
Article 94 authorizes imposition of the death penalty for mutiny, sedition, and failure to suppress or
report a mutiny or sedition.
- Contempt Toward Officials—Article 88 of the UCMJ prohibits commissioned officers—but not enlisted
service-members—from using ‘contemptuous words’ of certain officials, including the President, Vice
President, and Congress as an institution (but not individual Members).
Contemptuous words do not include ‘adverse criticism . . . in the course of a political discussion, even
though emphatically expressed.’
- Public Records Offenses—Article 104 of the UCMJ prohibits public records offenses,including the
willful and unlawful alteration, removal, mutilation, obliteration, or destruction of public records, as well
as the taking of a public record with the intent to take any of those actions.
- Offenses Concerning Government Computers—Under Article 123 of the UCMJ, it is an offense to
intentionally or knowingly access a government computer, with an unauthorized purpose, and thereby
obtain classified or other protected information.
Given reports that participants in the unrest accessed congressional computers, it is possible that they
may have accessed classified or sensitive information.
Crimes Against Persons
“The UCMJ also prohibits crimes against persons:
- Murder and Manslaughter—Articles 118 and 119 of the UCMJ prohibit murder and manslaughter,
respectively. The UCMJ authorizes imposition of the death penalty for premeditated murder and for
murder committed in the course of other crimes, including burglary, sexual assault, and aggravated
- Assault—Article 128 of the UCMJ prohibits assault—unlawful bodily harm to another person with force
or violence, as well as an attempt or offer to do the same—and aggravated assault—an assault
committed with a dangerous weapon, that inflicts substantial or grievous harm, or by strangulation or
- Endangerment—Article 114 of the UCMJ prohibits various types of endangerment, including (1)
‘wrongful and reckless or wanton’ conduct that ‘is likely to produce death or grievous bodily harm to
another person’; (2) discharge of a firearm ‘under circumstances such as to endanger human life’; and
(3) unlawfully carrying a concealed weapon. [...]
Offenses Unique to the Military
“In addition to the offenses above, which have civilian analogues, the UCMJ contains several offenses unique
to the military:
- Conduct Unbecoming An Officer and A Gentleman—Under Article 133, it is an offense for
commissioned officers, cadets, and midshipmen to take an action or engage in behavior that dishonors
or disgraces the officer in such a way as to seriously compromise the officer’s character or standing as
Examples of unbecoming conduct include crimes of moral turpitude and theft, and can include offenses
separately punishable under the UCMJ.
This article does not apply to enlisted service-members.
- The General Article—Article 134 of the UCMJ prohibits ‘all disorders and neglects to the prejudice of
good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed
forces, and crimes and offenses not capital.’
Courts-martial may, at their discretion, punish such acts ‘according to the nature and degree of the
offense.’ Prohibited actions under this Article include other federal crimes and—in certain
circumstances—crimes under state laws.
In addition, the Rules for Court-Martial specify additional offenses falling under Article 134, including (1)
disloyal statements; (2) disorderly conduct and drunkenness; and (3) negligent homicide.
Considerations for Congress
“Congress established the UCMJ under its constitutional authority in Article I, Section 8, clause 14 ‘[t]o make
Rules for the Government and Regulation of the land and naval Forces.’ Accordingly, should Congress wish
to amend any UCMJ provision, it may do so legislatively.
“If Congress chooses to amend the UCMJ in response to the unrest at the U.S. Capitol, it should consider
whether any such amendment constitutes a bill of attainder or ex post facto law.”
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