Ernst and politicians
Ernst, the Odd Clauses worth the read. Can a federal politician get in court-martial trouble for statements made in their legislative capacity?
Article I, Section 6, Clause 2.
...no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
The Clause serves a vital function in the American system of separated powers. The clause prevents the holding of legislative and executive office at the same time. It is a hallmark of American constitutional government: the independence of the executive and the Congress. See, The Heritage Guide to the Constitution.
Holding a commission in the Armed Forces, is in my view holding an executive office. This issue had come up recently in connection with Sen. Joni Ernst signing the “letter to Iran,” and with Sen. Dan Sullivan of Alaska. Not so long ago the question came up in regard to Sen. Lindsey Graham, serving as an Air Force military appeals judge. See, United States v. Lane, 60 M.J. 781 (C.A.A.F. 2004).
I have recommended reading, Jay Wexler, The Odd Clauses: Understanding the Constitution Through Ten of the Most Curious Provisions, Beacon Press, Boston (2011). Wexler addresses the Incompatibility Clause in Chapter 1. Wexler references United States v. Lane at page 9 (which is available through the Amazon preview). He discusses Reserve officers in regard to litigation at the time of the Vietnam War. See, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974).
Whether or not you agree with Ernst in signing the Letter to Iran, she is I believe, may repeat may be protected with an affirmative defense found in the Speech and Debate Clause, found in Article I, Section 6, Clause 1. The defense would go to any alleged disrespect to the President if laid under Article 88, UCMJ.
The Heritage Guide to the Constitution observes that James Wilson, “a principal architect of the Constitution,” said:
In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence. Lecture on Law (1791).The question would be whether the speech was in a legislative capacity. See, Hutchinson v. Proxmire, 443 U.S. 111 (1979) (Speech or Debate Clause does not protect transmittal of information by individual Members of Congress by press releases and newsletters.
The Speech or Debate Clause has been directly passed on by this Court relatively few times in 190 years. Literal reading of the Clause would, of course, confine its protection narrowly to a "Speech or Debate in either House." But the Court has given the Clause a practical rather than a strictly literal reading which would limit the protection to utterances made within the four walls of either Chamber. Thus, we have held that committee hearings are protected, even if held outside the Chambers; committee reports are also protected. The gloss going beyond a strictly literal reading of the Clause has not, however, departed from the objective of protecting only legislative activities.
443 U.S. at 125 (citations omitted).
Of course should something adverse arise within the National Guard and a Guard affiliation, that’s the time to consult with a military defense lawyer who would help navigate through the intricacies of National Guard regulations.