This was bound to happen.
A graph of President Obama’s leadership learning curve since January, 2009. This is actually a new graph, including data since the last one of these I posted, though I recognize that the difference is hard to see…
Waaay back in 2009, when the new President improvidently and recklessly commented on a local dispute between a Harvard professor and a Cambridge policeman, I pointed out that Obama needed to learnthe ethical limits on his power and influence. Teddy Roosevelt’s “bully pulpit” is not license for the highest office-holder in the land to try to mold public opinion on every conceivable matter, local or national, and to influence decisions solely within the authority of others. For the President to state his personal verdict on anything he wakes up concerned about risks putting a weighty thumb on the scales of justice. It is an abuse of power—a President behaving like an emperor.
This is not a difficult concept; indeed, with occasional lapses, every other President has grasped it instinctively. Not Barack Obama. Brilliant Barack Obama. “Constitutional scholar” Barack Obama. For while the Gates episode may have been a rookie mistake, he has engaged in exactly the same unethical, arrogant conduct repeatedly, here, and here, and here and here, and here, and especially here—and I’m sure I may have missed a few.
Each time I pointed out this inexcusable habit, I was barraged by glossy-eyed readers who made excuses for Obama and rationalized his grandstanding remarks, accusing me of being biased and hypercritical. But with each new instance, it should have been progressively clearer that I correctly diagnosed this malady in 2009. Now, after Obama has done it yet again, commenting inappropriately about the military sexual harassment scandal, this proclivity has finally had tangible legal consequences. You can’t say I didn’t warn him.
“Two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” derived from comments made by President Barack Obama, a judge ruled in a Hawaii military court this week. Navy Judge Cmdr. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing…Two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” derived from comments made by President Barack Obama, a judge ruled in a Hawaii military court this week.
“Navy Judge Cmdr. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing…On Wednesday and Thursday, Fulton approved the pretrial defense motions, which used as evidence comments that Obama made about sexual assault at a May 7 news conference.
“The bottom line is: I have no tolerance for this,” Obama said, according to an NBC News story submitted as evidence by defense attorneys in the sexual assault cases. ‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”
The judge’s pretrial ruling means that if either defendant is found guilty, whether by a jury or a military judge, they cannot receive a bad conduct discharge or a dishonorable discharge. Sailors found guilty under the Uniform Code of Military Justice’s Article 120, which covers several sexual crimes including assault and rape, generally receive punitive discharges.
“A member of the public would not hear the President’s statement to be a simple admonition to hold members accountable,” Fulton stated. “A member of the public would draw the connection between the ‘dishonorable discharge’ required by the President and a punitive discharge approved by the convening authority.”
Do you get it now, Mr. President? I doubt it. A more arrogant amateur at leadership ethics I have never seen. Now, as George Zimmerman defends himself against excessive second degree murder charges that never should have been brought, we can reflect on how the President’s pronouncements on that case—the last “here” above—might warp the results and interfere with justice. And we can wait for the next time this President decides to tell the public who is guilty and who isn’t.
I know it won’t do any good, but permit me the satisfaction of restating one my several expositions of my position on this, which were and are, as this decision shows, correct . This randomly chosen example—there are others, before and after—was written after the President, in the process of “not commenting” on the so-called “Ground Zero Mosque” controversy, did it again:
“The President of the United States is the leader of all of us, and has massive power (no matter what his Gallup Poll approval ratings may be) to not only persuade, but to change core attitudes among Americans who have deep respect for his high office and the men who have held it. It is a misuse, in fact, an abuse, of this massive power for the President to use it to register personal or political opinions about local, legal, cultural, or personal disputes and controversies. It is absolutely a proper use of his power, and his duty, to make clear statements regarding rights, responsibilities, national priorities and values. But he is not our national referee, advice columnist or arbiter of good taste, nor is he Oprah Winfrey, Rush Limbaugh or Maureen Dowd, and he diminishes his own stature every time he adopts these roles.
“President Obama has had a shockingly flat learning curve regarding this limit of legitimate presidential authority. He decided to take sides in the Prof. Gates “racial profiling” debacle, criticizing the Cambridge police. He suggested that free agent basketball star LeBron James might want to sign with his home town Chicago Bulls. He pronounced Massey Energy guilty while an investigation into its role in a mine disaster was still ongoing. What’s next? Declaring who should be the next American Idol judge? …Announcing that it’s OK to wear flip-flops in church?
“Americans are fully capable of arguing these and thousands of other issues without the President of the United States telling them the “right” opinion, even if he does so “without commenting.”
That was written in 2010.
Flat, flat,flat.
_______________________________
Spark: Instapundit
Facts: Stars and Stripes
Ethics Alarms 
As you know, I’m not a native speaker and this blog-post is giving me a hard time. I don’t understand the “unlawful command influence” thing. If it’s not too much trouble, could you put it into plainer English in a few sentences…
A way of saying because he outranks the people conducting the due process owed to the accusers and the defendants, any of his comments on the topic, especially ones implying an expected outcome, will affect or appear to affect the ability to be unbiased during due process.
The president has essentially given his verdict and demanded a punishment before a trial is complete.
ANYONE else outside the chain of command or other influential positions can make any commentary they want (although they ought not to).
But anyone with influence demanding an outcome of the process before the process is complete violates the fairness of the process and undermines trust in the process.
I am not sure this is the case here.
The President made very general statements. The Court did not even find that the President referred to these two specific cases.
“The bottom line is: I have no tolerance for this….I expect consequences….So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable – prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”
The president’s problematic comment is the one I emboldened. I understand in light of the final sentences which are IF-THEN comments his statement can be interpreted as innocuous, but unfortunately a comment clearly interpretable as one where guilt is a foregone conclusion and consequences are expected are amateurish.
By tradition, any desire or simple “want” or “I’d like” or other seemingly minor comments by a commander about a preferred end-state are supposed interpreted as commands by subordinates, unless the situation is clearly a lighthearted comment by a commander. So anything that even remotely sounds as a desire or an expected end-state immediately gives rise to the possibility that an outcome that matches that desire came about because of orders, not because of an impartial process.
That being the case, the IF-THEN comments or statements in support of the Military Judicial process finding out if any parties are guilty should have been all that was necessary for the president to say.
And yes, I’m certain that your interpretation is precisely what the President meant. But that’s why he’s incompetent and an amateur. He can’t even word his thoughts without considering secondary and tertiary effects.
Exactly – it’s a very different mindset from the boss/employee mindset most people invision. The chain of command and the superior officer/subordinate officer relationship are WORLDS apart from what most of us understand. Which is why military courts are so very necessary, and why our commander-in-chief should at least have a CURSORY understanding of our military, beyond how useful they are at holding umbrealla…
Okay. So now that the defendants will be discharged without any consequences could the President actually swoop in and enforce all he said should be done to anyone “engaging in this”?
And are the defendants now discharged at all?
President wouldn’t need to swoop in and enforce all he said. He’s the commander in chief. As long as he establishes a command climate that upholds rules that are *already in place*, then he shouldn’t get spun about this at all.
But the judge doesn’t seem to mind what the president said – because the defendants received not punishment except for being discharged… So why mind the president’s words at all if you’re not going to follow through…?
Sure: the guy who is everybody’s boss and commander prejudiced the process by making his preferred verdict clear before the case was tried, thus making a fair trial impossible.
Judging solely from the article you cite (and I am not discounting the possibility that there were other comments made by the president that were not reported therein), it appeared that he was only talking about rape cases in a general sense, instead of talking about the two specific cases at hand. If a President had appeared in a rally in support of the death penalty without mentioning any specific cases, would that prevent military courts from imposing the death penalty?
I would doubt the CAAF would uphold this ruling on appeal, if that is all there is to it.
This may sound kind of naive but couldn’t the military court make a clarifying phone call to the White House and demand to know if Obama’s words were actually a command in disguise and if the answer was negative, and the fact established that the president will not influence the case’s outcome, proceed as ususal?
Subordinate: “Sir, did you actually mean what the words you used meant? Or are you inept?”
Commander: “Excuse me?”
Not gonna happen.
Come on, Jack. He’s SMART. He was the president of the Harvard Law Review. He worked at Sidley & Austin. He wasn’t just some JAG Corps loser like this military judge.
(Tongue in cheek.)
But seriously, let’s hear it for that military judge and the lawyers who made the motion. Good for them.
Nice post.
Adolf speaks! And so, we must listen!
Heil. Doesn’t work here, luckily…at least not well enough. Yet.
So, based on yor thinking, Jack, Bradley Manning’s case will be thrown out due to a prejudicial remark by Obama?
http://www.cbsnews.com/8301-503544_162-20056566-503544.html
I don’t think it’s Jack’s reasoning. I think it was te reasoning of the officials presiding over the Hawaii cases.
The case for Manning is stronger, as Obama made a comment about a specific case, and he said Manning was guilty outside of the context of testifying in trial.
Indeed.
Maybe so, if his lawyers file a motion.
No…who knows? But it was a irresponsible to risk it.
I won’t hold my breath waiting to hear about this on TV news.
You might, but they will frame it something like this: “Military judge rules that two rapists will stay in the military.”
Just as they did when General Amos faced this same issue.
Jack – I absolutely agree with your analysis here and really appreciate you managing the archive. You have inspired a leadership lesson. http://wp.me/pMf6W-tI
” If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”
Bravo, Mr. President, I knew you believed in accountability. So long Eric Holder!
Oh, wait, he was talking about something else.
I like it
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Jack, does the Chief of the Australian Army make a similar mistake to the one our CINC made or are his words more wisely chosen?
And for some unknown reason I stopped getting updates from your site about a week ago. I tried to sign up again for email notifications of new posts but I have not yet received the email to confirm the subscription.
Hmmm. I’ll check into what’s going on.
And I re-listened to the General above and i think I answered my own
Oh, dear. I inadvertently hit post comment. Anyway, I think I answered my own question. The Australian Army Chief did not offer his idea of what the punishment should look like for the potentially accused. He told others who might have different values to get out of his Army. That is different than commenting on sentencing for a case. I always welcome your opinion, however!
I found the emails in my spam folder. I have no idea why yahoo started sending them there. I’ll try to figure out how to fix that on my end. It has never happened before. hmmm