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Ruling: senator cannot be military judge, too

This is another in a continuing series of posts on the impact of Supreme Court precedents on later disputes. The precedents at issue in this case are Buckley v. Valeo (1976), Weiss v. U.S. (1994), Ryder v. U.S. (1995) and Edmond v U.S. (1997).

The highest court in the military judiciary, the U.S. Court of Appeals for the Armed Forces, on Wednesday barred a U.S. senator from sitting on a military appeals court that decides criminal cases. By a vote of 4-1, the Court found unconstitutional the dual role of Lindsey O. Graham as a senator (Republican from South Carolina) and as a reserve officer sitting on the Air Force Court of Criminal Appeals.

The decision in Lane v. U.S. (CAAF docket 05-260) can be found here. The decision is subject to a potential appeal by the federal government to the Supreme Court.

The special court’s ruling overturns a decision by the Air Force court upholding the criminal conviction of Airman First Class Charles M. Lane. The Airman had been convicted of illegal use of cocaine, and was sentenced at a military trial to jailing for 135 days, reduction to the lowest pay grade, and bad-conduct discharge. Sen. Graham, in his role as an officer in the Air Force Standby Reserve, was a judge on the Criminal Appeals Court that rejected Lane’s appeal. Lane had tried unsuccessfully to disqualify the senator as a judge. (The Airman did not challenge Graham’s service in the military or his status in the Standby Reserve, and Wednesday’s ruling did not deal with those issues, confining itself to his status as a military appeals judge.)

Chief Judge H.F.Gierke wrote the 17-page decision, joined by Judges James E. Baker, Andrew S. Effron and Charles E. Erdmann. Dissenting in a 14-page opinion was Judge Susan J. Crawford.

The majority relied upon the Constitution’s “incompatibility clause” in Article I, ” saying that “no person holding any office under the United States shall be a member of either House during his continuance in service.” It also relied upon separation-of-power principles, primarily as discussed by the Supreme Court in Buckley v. Valeo (1976) and three Supreme Court precedents from the 1990s dealing with appointments to military courts..

Chief Judge Gierke’s opinion rejected the government argument that determinations of whether members of Congress may hold other positions, without violating the “incompatibility clause,” is for Congress alone. The Court said it was not judging a qualification to sit in Congress, but rather whether a criminal conviction in the military could be upheld by a panel that included a judge who simultaneously was a member of Congress.

In finding Graham’s dual role as a judge invalid, the majority declared that separation of powers doctrine “was forged in the hard-earned lesson from history that executive, legislative, and judicial powers should not reside in one hand. One of the purposes served by the separation of powers is that a military accused will not be judged by a member of Congress. Service by a member of Congress performing independent judicial functions runs afoul of the fundamental constitutional principle of separation of powers.”

The job of a military appeals judge, weighing criminal cases, the Court said, is “an office of the United States and cannot be filled by a person who simultaneously serves as a member of Congress.” It sent the Lane case back to the Air Force Court of Criminal Appeals for a new review, presumably without Sen. Graham on the panel.

Judge Crawford, in dissent, contended that there was no constitutional error in Sen. Graham’s role, and that, even if there were, it was harmless because Airman Lane had been unable to show he suffered any “actual prejudice.” She also said that, if Congress thought there were a constitutional problem in Sen. Graham’s service, it would have been free to take action, and it has not.

Congress, the judge added, “may well desire the suynergism that would result from having a member of Congress serving as a trial or appellate judge in the miliary justice system.”

Judge Crawford also suggested that any relief in the case should apply only to future cases, rather than require readjudication of a prior case.

(Sen. Graham’s office did not respond to a request for comment on the ruling.)