Although recent litigation has focused on troop deployments to American cities, a new challenge in Minnesota looks at DOJ's use of JAG lawyers in non-military cases.
Thank you for providing excellent detail on this. This was one that I had completely missed and is so important.
The amicus brief does a great job of explaining why it's so dangerous to assign military lawyers to act in a civilian capacity. Some of your readers (not naming names, note) may find it too complex to fully understand, though.
Thankfully, you bolded the bits that might help them. Poor dears.
Leave it to the professionals, purveyors of illegality par excellence, under the lawless DOJ of Todd Blanche, (with brash PR malfeasance helpfully provided by his secretary, Pam Bondi), to devise a multi-layered method of abusing military lawyers, (who are actually very badly needed in their proper role), to pursue utterly illegal — even lawless — programs, in pursuit of cruel persecution of vulnerable persons unfortunate enough to have sought safety on American soil.
It all appears patently illegal, as lower courts likely will find. But who knows what fresh “doctrine”the “big brains” of SCOTUS may devise to extend, hide, or endorse this latest illegal maneuver of the current criminal president and his lawless regime of official incompetents?
I think the brief does a great job explaining why using the JAGs in this way is a bad idea, but I am skeptical it can overcome the text of UCMJ art. 6, which permits JAGs assigned to other agencies to perform “such duties as may be requested by the agency concerned, including representation of the United States in civil and criminal cases.” It doesn’t require a military nexus or approval from the service. Courts have not required PCA exceptions to expressly mention the PCA or use magic words. So unless the Army regs are controlling—and it’s not clear to me that the regs even bar JAG officers from being employed in litigation with no Army connection—I remain unconvinced. Happy to be proved wrong, though.
You're missing the opening of that, which is discussing "such duties" within the confines of permitted assignments or details under section 973(b)(2)(B) — which is addressed in the brief at length.
I see it, I am just not seeing where §973(b)(2)(B) limits the functions in the way suggested. I’m not sure what weight a court would give language in committee reports that is not reflected in the statute. What committees wanted and what Congress voted on are not the same. Especially when this got passed as part of an NDAA. There is no conference report. What am I missing? (It seems odd that the recent OLC opinion on assigning JAGs does not address art. 6 or §973.)
Just to clarify, what is the limitation on art. 6? Is it §973(b)(2)(B) “may …exercise the functions of a civil office…when assigned…to…that office or to perform those functions”? Or that plus legislative history?
All I'm saying is that Art. 6 is limited by the language of 973(b)(2)(B). The provision you quoted originally only applies to those properly performing the functions under Section 973(b)(2)(B).
// A judge advocate who is assigned or detailed to perform the functions of a civil office in the Government of the United States under section 973(b)(2)(B) of this title may perform such duties as may be requested by the agency concerned, including representation of the United States in civil and criminal cases. //
So, I'm not quite sure why Art. 6 is relevant. If this arrangement isn't proper under Section 973(b)(2)(B) — as the brief argues — then Art. 6 doesn't save it. If you think they're wrong about Section 973(b)(2)(B), then the dispute is about Section 973(b)(2)(B).
Art. 6 is relevant to the existence of a PCA exception because it expressly authorizes JAGs appointed in accordance with §973 to act as prosecutors on the government’s behalf. Sec. 973(b)(2)(B) is not specific to JAG officers or prosecutorial functions and would by itself not likely constitute a PCA exception.
I agree that an appointment inconsistent with §973 would not benefit from art. 6. I’m just not seeing the inconsistency. Sure, legislative history supports congressional intent to approve JAGs helping DOJ only in cases involving the military, but the statute does not say so. It would not have been difficult to write in such a limitation. The statute doesn’t seem very ambiguous to me, so recourse to legislative history might be found improper. And even if the court considers it, I can see the judge declining to rewrite the law for Congress.
Hakes-Rodriguez may well be "supervised in the work related to his detail entirely by civilian supervisors within the District of Minnesota United States Attorney’s Office," but he surely must expect to return to his unit at some point. The spectre of unlawful command influence can't be waved away like smoke while cooking. There need not be a single act on which to hang the label of unlawful command influence; it can be sufficient if there is a command climate or atmosphere created by the action of the unit commander. Given that Hakes-Rodriguez is barely out of law school, he may be especially sensitive to command influence that more seasoned attorneys (and JAG lawyers) would brush off.
This whole “constitutional crisis” over JAG lawyers is a complete nothing burger. Bureaucratic drama for people who enjoy crying on Substack. If someone thinks there’s even a technical Posse Comitatus issue, the fix is laughably simple: put the officer on paid administrative leave, count the time as service credit, and swap the name on the filing. Problem solved. No tanks in the streets, no military dictatorship—just paperwork. Washington has real problems: border chaos, terror states, election integrity, and war abroad. But somehow we’re supposed to panic because a military lawyer helped process national security-related cases in Minnesota? Spare me. What are they going to cry about next?
The fact that your response to everything is "This isn't a thing because I think something else is actually the thing that matters" is growing rather tiresome. Carry on as you wish, but your point has been made.
You notice I don't dissent on all of your articles. I read just about everything, and I pick my spots. I actually agree with a fair bit of what you say. For example, I enjoyed the coverage of the felony-murder question in the Sonny Burton case. How it is not readily apparent that the ultimate penalty should not be available when there are neither retributivist nor deterrent reasons to support it in a felony -murder situation is beyond me. If it would make you feel better if I put out "love notes" from time to time, I will. Consider this one the first.
Wait--there's chaos at the border? So I guess Trump was lying when he recently said illegal border crossings are at their lowest level since the 1970s?
But who will prosecute fraud cases when all the lawyers with integrity have resigned. Oh that's right Jag lawyers should not obey illegal orders either. So I guess only lawyers without integrity will be left.
Have the JAG lawyers resigned their commissions? If they are supervised by a civilian, what does the chain of command look like? Finally, unlike their civilian counterparts, if they are still active duty, will they be able to quit, like their civilian counterparts when asked to perform *ahem* ethically challenged actions?
I will bet that if the court goes with the brief there will be a lot of thankful JAGs. Since this was a misdemeanor (because an "information" was used) then likely Johnson never touched the CBP guy, since 18 USC seems to require physical contact to get anything over a year ax.
JAG lawyers brought in on civil cases? National Guard brought in to meander blue cities? U.S. Army brought in to gaze thoughtfully at the southern border? King Donald the Only: “This military is MINE!” Martial law next?
Thank you for providing excellent detail on this. This was one that I had completely missed and is so important.
The amicus brief does a great job of explaining why it's so dangerous to assign military lawyers to act in a civilian capacity. Some of your readers (not naming names, note) may find it too complex to fully understand, though.
Thankfully, you bolded the bits that might help them. Poor dears.
Leave it to the professionals, purveyors of illegality par excellence, under the lawless DOJ of Todd Blanche, (with brash PR malfeasance helpfully provided by his secretary, Pam Bondi), to devise a multi-layered method of abusing military lawyers, (who are actually very badly needed in their proper role), to pursue utterly illegal — even lawless — programs, in pursuit of cruel persecution of vulnerable persons unfortunate enough to have sought safety on American soil.
It all appears patently illegal, as lower courts likely will find. But who knows what fresh “doctrine”the “big brains” of SCOTUS may devise to extend, hide, or endorse this latest illegal maneuver of the current criminal president and his lawless regime of official incompetents?
So many violations in such little time. Corruption is intertwined throughout the whole administration.
Chris,
Excellent summary of the law, pertaining to PCA and JAG, as drafted, by DOJ. And you thought our military was all volunteer.
I so appreciate your work. Thank you for this thorough, detailed piece.
I think the brief does a great job explaining why using the JAGs in this way is a bad idea, but I am skeptical it can overcome the text of UCMJ art. 6, which permits JAGs assigned to other agencies to perform “such duties as may be requested by the agency concerned, including representation of the United States in civil and criminal cases.” It doesn’t require a military nexus or approval from the service. Courts have not required PCA exceptions to expressly mention the PCA or use magic words. So unless the Army regs are controlling—and it’s not clear to me that the regs even bar JAG officers from being employed in litigation with no Army connection—I remain unconvinced. Happy to be proved wrong, though.
You're missing the opening of that, which is discussing "such duties" within the confines of permitted assignments or details under section 973(b)(2)(B) — which is addressed in the brief at length.
I see it, I am just not seeing where §973(b)(2)(B) limits the functions in the way suggested. I’m not sure what weight a court would give language in committee reports that is not reflected in the statute. What committees wanted and what Congress voted on are not the same. Especially when this got passed as part of an NDAA. There is no conference report. What am I missing? (It seems odd that the recent OLC opinion on assigning JAGs does not address art. 6 or §973.)
Well, that’s a further question, but it is a limitation of art. 6. I’m just saying that your initial comment is talking around the main issue.
Just to clarify, what is the limitation on art. 6? Is it §973(b)(2)(B) “may …exercise the functions of a civil office…when assigned…to…that office or to perform those functions”? Or that plus legislative history?
Apologies for “talking around” this issue.
All I'm saying is that Art. 6 is limited by the language of 973(b)(2)(B). The provision you quoted originally only applies to those properly performing the functions under Section 973(b)(2)(B).
// A judge advocate who is assigned or detailed to perform the functions of a civil office in the Government of the United States under section 973(b)(2)(B) of this title may perform such duties as may be requested by the agency concerned, including representation of the United States in civil and criminal cases. //
So, I'm not quite sure why Art. 6 is relevant. If this arrangement isn't proper under Section 973(b)(2)(B) — as the brief argues — then Art. 6 doesn't save it. If you think they're wrong about Section 973(b)(2)(B), then the dispute is about Section 973(b)(2)(B).
Art. 6 is relevant to the existence of a PCA exception because it expressly authorizes JAGs appointed in accordance with §973 to act as prosecutors on the government’s behalf. Sec. 973(b)(2)(B) is not specific to JAG officers or prosecutorial functions and would by itself not likely constitute a PCA exception.
I agree that an appointment inconsistent with §973 would not benefit from art. 6. I’m just not seeing the inconsistency. Sure, legislative history supports congressional intent to approve JAGs helping DOJ only in cases involving the military, but the statute does not say so. It would not have been difficult to write in such a limitation. The statute doesn’t seem very ambiguous to me, so recourse to legislative history might be found improper. And even if the court considers it, I can see the judge declining to rewrite the law for Congress.
Sorry, there is a conf. Rep. My bad. It just doesn’t show up on Congress.gov (probably too old).
Sometimes “the law” seems practically meaningless, (layman speaking here, not a lawyer).
Hakes-Rodriguez may well be "supervised in the work related to his detail entirely by civilian supervisors within the District of Minnesota United States Attorney’s Office," but he surely must expect to return to his unit at some point. The spectre of unlawful command influence can't be waved away like smoke while cooking. There need not be a single act on which to hang the label of unlawful command influence; it can be sufficient if there is a command climate or atmosphere created by the action of the unit commander. Given that Hakes-Rodriguez is barely out of law school, he may be especially sensitive to command influence that more seasoned attorneys (and JAG lawyers) would brush off.
This whole “constitutional crisis” over JAG lawyers is a complete nothing burger. Bureaucratic drama for people who enjoy crying on Substack. If someone thinks there’s even a technical Posse Comitatus issue, the fix is laughably simple: put the officer on paid administrative leave, count the time as service credit, and swap the name on the filing. Problem solved. No tanks in the streets, no military dictatorship—just paperwork. Washington has real problems: border chaos, terror states, election integrity, and war abroad. But somehow we’re supposed to panic because a military lawyer helped process national security-related cases in Minnesota? Spare me. What are they going to cry about next?
The fact that your response to everything is "This isn't a thing because I think something else is actually the thing that matters" is growing rather tiresome. Carry on as you wish, but your point has been made.
You notice I don't dissent on all of your articles. I read just about everything, and I pick my spots. I actually agree with a fair bit of what you say. For example, I enjoyed the coverage of the felony-murder question in the Sonny Burton case. How it is not readily apparent that the ultimate penalty should not be available when there are neither retributivist nor deterrent reasons to support it in a felony -murder situation is beyond me. If it would make you feel better if I put out "love notes" from time to time, I will. Consider this one the first.
Wait--there's chaos at the border? So I guess Trump was lying when he recently said illegal border crossings are at their lowest level since the 1970s?
Silly laws! Just get around them—no probs.
Be careful. You’re about to put every tax and estate planning lawyer out of a job.
But who will prosecute fraud cases when all the lawyers with integrity have resigned. Oh that's right Jag lawyers should not obey illegal orders either. So I guess only lawyers without integrity will be left.
So many questions...
Have the JAG lawyers resigned their commissions? If they are supervised by a civilian, what does the chain of command look like? Finally, unlike their civilian counterparts, if they are still active duty, will they be able to quit, like their civilian counterparts when asked to perform *ahem* ethically challenged actions?
I will bet that if the court goes with the brief there will be a lot of thankful JAGs. Since this was a misdemeanor (because an "information" was used) then likely Johnson never touched the CBP guy, since 18 USC seems to require physical contact to get anything over a year ax.
JAG lawyers brought in on civil cases? National Guard brought in to meander blue cities? U.S. Army brought in to gaze thoughtfully at the southern border? King Donald the Only: “This military is MINE!” Martial law next?
Laws, propriety, civility, morality—is there anything this crass and craven man hasn’t violated?
No