My Own Brief Interaction With The Rule
In 1984 I was a young Captain in the United States Army, stationed in San Antonio Texas. On the day of the Republican primary I decided I would like to participate in the Republican precinct caucus that followed the voting. However, I was concerned doing so might violate military rules, that I vaguely knew, prohibiting members of the military from participating in political events.
I called the Fort Sam Houston Judge Advocate General’s office (Army lawyers) and asked. They needed a couple of hours to look into it, but returned my call telling me it was okay with a couple of caveats. Those caveats included that I could not wear my uniform to the caucus and I should not identify myself as being in the Army (e.g. I should not introduce myself as “Captain Barber”).
Trump’s July 4th Plans Seem Campaign Like
Donald Trump is planning a July 4th dog and pony show at the National Mall that many regard as a big campaign rally where Trump, as CNN put it, will present himself (again) as the “arbiter of patriotism.” In tweets Trump has appeared to link the event with his campaign for reelection.
That whole “favorite President” part seems like a campaign address to me which in turn is linked to “our great Military Leaders” being thrilled to do this.
The official Department of Interior release on the event emphasizes the President’s doing an address in combination with the military themes.
This year’s annual Independence Day celebration on the National Mall, will feature music, flyovers, fireworks, and an address by President Donald J. Trump. Salute to America will honor each of the nation’s five service branches with music, military demonstrations, multiple flyovers including a flight demonstration by the Blue Angels, and much more.
VIP tickets for the restricted area around Lincoln Memorial, where Trump will give his speech, are being given out on a partisan basis to Republican donors and political appointees. The Republican National Committee has been given a block of tickets to hand out at their discretion, but not the Democratic National Committee.
The Rule: DOD Directive 1344.10
With these facts, let’s consider the Rule. DOD Directive 1344.10 lists the “Political Activities by Members of the Armed Forces” that are permitted and not permitted. Its objective is to support the “traditional concept that members on active duty should not engage in partisan political activity.”
Permitted activities include voting, participating in a partisan club and attending its meetings when not in uniform (per my story above), signing petitions, contributing to political campaigns, and displaying a political bumper sticker on your car. Finally, there is one permitted activity that might be relevant to the President’s July 4th rally.
Attend partisan and nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no inference or appearance of official sponsorship, approval, or endorsement can reasonably be drawn.
This “permission” is mostly notable for what it does not permit. It does not permit appearing at partisan rallies or activities either in uniform or where there could be a mere “inference or appearance” of official sponsorship, approval, or endorsement” reasonably drawn. In this regard, please note the tweet above where trump said, “our great military leaders are thrilled to be doing this.”
Some of the various explicit prohibitions on military member involvement in political activities are worth mention.
4.1.2. A member of the Armed Forces on active duty shall not:
220.127.116.11. Participate in . . . rallies, conventions (including making speeches in the course thereof), management of campaigns, or debates, either on one’s own behalf or on that of another, without respect to uniform or inference or appearance of official sponsorship, approval, or endorsement. Participation includes more than mere attendance as a spectator.
So a member of the military can obviously attend the event, with everyone else in the crowd, but appearing on stage with the President, or as a VIP, is “more than mere attendance as a spectator.”
Mere attendance at partisan political events “as an official representative of the Army Forces” is also generally prohibited. A member of the Armed Forces on active duty shall not:
18.104.22.168. Attend partisan political events as an official representative of the Armed Forces, except as a member of a joint Armed Forces color guard at the opening ceremonies of the national conventions of the Republican, Democratic, or other political parties recognized by the Federal Elections Committee or as otherwise authorized by the Secretary concerned.
Interpretation of the Rule
Much hinges on whether the event is deemed a partisan political event. An appendix to the Rule defines a partisan political event as “activity supporting or relating to candidates representing, or issues specifically identified with, national or State political parties and associated or ancillary organizations or clubs.”
That’s not very helpful but read through those Trump tweets again. Ask this question, is there any involvement in this event from the other party? It certainly seems like Trump regards this as a rally as a chance to boast all that he does for this country, which he claims includes revitalizing the military.
Interestingly, the Rule provides guidance on how to address any fuzzy areas or close calls. Because the principle is rooted in even the mere appearance or potential inference of favoritism by the military, the Rule is to err on the side of caution.
4.1.5. Activities not expressly prohibited may be contrary to the spirit and intent of this Directive. Any activity that may be reasonably viewed as directly or indirectly associating the Department of Defense or the Department of Homeland Security (in the case of the Coast Guard) or any component of these Departments with a partisan political activity or is otherwise contrary to the spirit and intention of this Directive shall be avoided.
There is also this statement from official training materials on the matter, suggesting avoidance of even questionable situations, and the imprudence of this President in putting military officials in this dilemma:
While DoD policy cannot restrict a sitting President, given the prohibitions the Hatch Act and DoDI 1344.10 place on individuals, it would be imprudent for a sitting president to campaign on a military installation as it would expose individuals to violations of said rules.
The penalty for non-compliance is also clearly spelled out by the Rule:
4.6.4. This is a lawful general regulation. Violations . . . by persons subject to the Uniform Code of Military Justice are punishable under Article 92, “Failure to Obey Order or Regulation.”
If I was asked to advise an officer
The story I told at the start was long before I went to law school, but as a former military officer and lawyer, let’s suppose I was a JAG officer and received a similar inquiry from a high ranking officer, this time asking if he or she would appear with the President at this July 4th event.
I would advise such an officer to not attend. While arguably a close call the Rule itself urges caution and avoidance of close calls. I would be compelled to admit that it is unlikely the officer would face UCMJ prosecution, or even other discipline. But the same would be true for any senior officer appearing at a partisan political rally at the invitation of his Commander in Chief.
I would suggest that the concern is for the poor example it would set for those not of such high rank. They would see this general up there and believe similar conduct by themselves as acceptable. It would lead to a graying of the lines of the Rule, something that should be avoided.
There is also the policy reasons behind the Rule to consider. The military is supposed to be apolitical and doing this will risk contradicting that perception in the eyes of many in the public. Avoidance of that is the whole point of the Rule. Given that this concern has already been raised, avoiding the appearance of endorsing a candidate, as made clear by the Rule, is tantamount.
I would consider advising that much of the risk under this Rule can be reduced by attending not in uniform. However, I would still advise against that because that might be viewed by the President as sending its own message of defiance.
The most prudent course is to simply not attend.