Unrest at the Capitol: Potential Violations of the Uniform Code of Military Justice

Unrest at the Capitol: Potential Violations of the Uniform Code of Military Justice

Legal Sidebari
Unrest at the Capitol: Potential Violations of
the Uniform Code of Military Justice
February 5, 2021
After the unrest at the U.S. Capitol on January 6, 2021, sources reported that current and former military
servicemembers were among the participants in the unrest. These reports prompted several Members of
Congress to ask the Department of Defense to investigate servicemembers’ participation and take
disciplinary action. The military is investigating whether any active-duty servicemembers participated in
the unrest, and the Joint Chiefs of Staff issued a memorandum condemning the “violent riot” and actions
“that were inconsistent with the rule of law.”
This Legal Sidebar examines potential violations of the Uniform Code of Military Justice (UCMJ),
codified in Title 10 of the U.S. Code, those servicemembers may have committed. The Sidebar begins by
discussing which current and former servicemembers are subject to the UCMJ. It then examines offenses
under the UCMJ that current or former servicemembers may have committed on January 6, 2021,
including potential sentences for each offense. It concludes with several considerations for Congress.
For information on federal criminal laws that may be relevant to the unrest at the Capitol, see CRS Legal
Sidebar LSB10564, Federal Criminal Law: January 6, 2021, Unrest at the Capitol, by Michael A. Foster
and Peter G. Berris. For general information on the military justice system and courts-martial, see CRS
Report R46503, Military Courts-Martial Under the Military Justice Act of 2016, by Jennifer K. Elsea and
Jonathan M. Gaffney.
Individuals Subject to the UCMJ
Article 2 of the UCMJ specifies which persons fal under the UCMJ’s jurisdiction. Besides active-duty
servicemembers, certain retired servicemembers, civilians, and enemy prisoners of war are also subject to
the UCMJ. Three categories appear most relevant to the events of January 6, 2021:
 Active-duty servicemembers, including (1) members of a regular component of the
Armed Forces, including those awaiting discharge; (2) cadets, aviation cadets, and
midshipmen; and (3) members of the National Oceanic and Atmospheric Administration
and Public Health Service, when assigned to and serving with the Armed Forces;
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 Retired members of a regular component of the Armed Forces who are entitled to pay;
and
 Members of the Fleet Reserve and Fleet Marine Corps Reserve—enlisted members of the
Navy and Marine Corps who (1) served more than twenty but fewer than thirty years;
(2) are no longer on active duty; and (3) receive retainer pay.
In general, members of the reserve components and National Guard are not subject to the UCMJ unless
cal ed to federal duty.
Potentially Relevant UCMJ Offenses
This section examines UCMJ offenses that current and former servicemembers may have committed
during the unrest at the Capitol. It divides these offenses into six broad categories: (1) crimes against
government authority; (2) crimes against persons; (3) property crimes; (4) crimes concerning public
safety; (5) offenses unique to the military; and (6) subsequent criminal acts. Although not discussed in
this Sidebar, the UCMJ also prohibits inchoate offenses like attempts, conspiracy, and solicitation to
commit the offenses examined below, as wel as subsequent actions like evading arrest, making false
statements, and obstructing justice. Unless otherwise noted, each offense may be punished “as a court-
martial may direct,” which could include a fine, imprisonment, a reduction in pay grade, or a punitive
discharge.
Crimes Against Government Authority
The UCMJ prohibits a number of crimes against government authority:
 Mutiny or Sedition—Article 94 of the UCMJ prohibits (1) mutiny; (2) sedition; and
(3) the failure to prevent, suppress, or report mutiny or sedition. As relevant to the unrest
at the Capitol, a person who, “with intent to cause the overthrow or destruction of lawful
civil authority, creates, in concert with any other person, revolt, violence, or other
disturbance against that authority is guilty of sedition.” In addition, any person who “fails
to do his utmost to prevent and suppress a mutiny or sedition being committed in his
presence” or fails to report to the proper officer a mutiny or sedition “which he knows or
has reason to believe is taking place” is guilty of a failure to report or suppress a mutiny
or sedition. Article 94 authorizes imposition of the death penalty for mutiny, sedition, and
failure to suppress or report a mutiny or sedition.
 Contempt Toward Officials—Article 88 of the UCMJ prohibits commissioned
officers—but not enlisted servicemembers—from using “contemptuous words” of certain
officials, including the President, Vice President, and Congress as an institution (but not
individual Members). Contemptuous words do not include “adverse criticism . . . in the
course of a political discussion, even though emphatical y expressed.”
 Public Records Offenses—Article 104 of the UCMJ prohibits public records offenses,
including the wil ful and unlawful alteration, removal, mutilation, obliteration, or
destruction of public records, as wel as the taking of a public record with the intent to
take any of those actions.
 Offenses Concerning Government Computers—Under Article 123 of the UCMJ, it is
an offense to intentional y or knowingly access a government computer, with an
unauthorized purpose, and thereby obtain classified or other protected information. Given
reports that participants in the unrest accessed congressional computers, it is possible that
they may have accessed classified or sensitive information.

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Crimes Against Persons
The UCMJ also prohibits crimes against persons:
 Murder and Manslaughter—Articles 118 and 119 of the UCMJ prohibit murder and
manslaughter, respectively. The UCMJ authorizes imposition of the death penalty for
premeditated murder and for murder committed in the course of other crimes, including
burglary, sexual assault, and aggravated arson.
 Assault—Article 128 of the UCMJ prohibits assault—unlawful bodily harm to another
person with force or violence, as wel as an attempt or offer to do the same—and
aggravated assault—an assault committed with a dangerous weapon, that inflicts
substantial or grievous harm, or by strangulation or suffocation.
 Endangerment—Article 114 of the UCMJ prohibits various types of endangerment,
including (1) “wrongful and reckless or wanton” conduct that “is likely to produce death
or grievous bodily harm to another person”; (2) discharge of a firearm “under
circumstances such as to endanger human life”; and (3) unlawfully carrying a concealed
weapon.
Property Crimes
The UCMJ includes offenses that involve the theft or destruction of property:
 Waste, Spoilage, or Destruction of Non-Military Property—Under Article 109 of the
UCMJ, it is an offense to wil fully and wrongfully destroy or damage any property that is
not the military property of the United States. Article 109 also prohibits the wil ful or
reckless waste or spoilage of property.
 Larceny, Wrongful Appropriation, and Robbery—Articles 121 and 122 of the UCMJ
prohibit larceny, wrongful appropriation, and robbery. These offenses al involve the
wrongful taking of something of value—such as money or property—from a person. An
offender who intends only to temporarily deprive or defraud the person of the thing of
value commits wrongful appropriation, while an offender who intends to do so
permanently commits larceny. An offender who uses force, violence, or fear to take the
thing of value commits robbery.
 Burglary and Unlawful Entry—Article 129 of the UCMJ prohibits any person from
unlawfully entering another person’s real property or personal property used as a
structure for habitation or storage (such as a tent). In addition, it prohibits burglary—
breaking and entering a building or structure with the intent to commit another offense.
Crimes Concerning Public Safety
In addition to offenses against the government and specific persons or property, the UCMJ also prohibits
several offenses that threaten public safety:
 Communicating Threats—Article 115 of the UCMJ prohibits the wrongful
communication of a threat to injure a person or a person’s property or reputation,
including threats—both real and false—to use explosives, biological or chemical agents,
or weapons of mass destruction.
 Riot or Breach of Peace—Under Article 116 of the UCMJ, it is an offense to cause or
participate in a riot or breach of the peace.

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 Provoking Speeches or Gestures—Article 117 of the UCMJ prohibits the use of
provoking or reproachful words or gestures toward any other person subject to the
UCMJ.
Offenses Unique to the Military
In addition to the offenses above, which have civilian analogues, the UCMJ contains several offenses
unique to the military:
 Conduct Unbecoming An Officer and A Gentleman—Under Article 133, it is an
offense for commissioned officers, cadets, and midshipmen to take an action or engage in
behavior that dishonors or disgraces the officer in such a way as to seriously compromise
the officer’s character or standing as an officer. Examples of unbecoming conduct include
crimes of moral turpitude and theft, and can include offenses separately punishable under
the UCMJ. This article does not apply to enlisted servicemembers.
 The General Article—Article 134 of the UCMJ prohibits “al disorders and neglects to
the prejudice of good order and discipline in the armed forces, al conduct of a nature to
bring discredit upon the armed forces, and crimes and offenses not capital.” Courts-
martial may, at their discretion, punish such acts “according to the nature and degree of
the offense.” Prohibited actions under this Article include other federal crimes and—in
certain circumstances—crimes under state laws. In addition, the Rules for Court-Martial
specify additional offenses fal ing under Article 134, including (1) disloyal statements;
(2) disorderly conduct and drunkenness; and (3) negligent homicide.
Considerations for Congress
Congress established the UCMJ under its constitutional authority in Article I, Section 8, clause 14 “[t]o
make Rules for the Government and Regulation of the land and naval Forces.” Accordingly, should
Congress wish to amend any UCMJ provision, it may do so legislatively. If Congress chooses to amend
the UCMJ in response to the unrest at the U.S. Capitol, it should consider whether any such amendment
constitutes a bil of attainder or ex post facto law.

Author Information

Jonathan M. Gaffney

Legislative Attorney

Disclaimer
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