Can the US President be court martialed? Fox News interview baffles viewers

Alexandra Ciufudean August 23, 2021
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Can the US president be court martialed? What is a court martial anyway and how does it work? The question has been on some Americans’ minds after a recent Fox News interview with retired British Army officer Richard Kemp, who expressed his wish for President Joe Biden to be “court-martialed” for the Taliban’s takeover of power in Afghanistan.

For anyone taken aback by Kemp’s opinion – and perhaps confused at the term and its implications – we’ve got you. Here is what a court martial is, under what circumstances this type of trial is conducted and whether the president can be court martialed.

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What is a court martial?

A court martial (alternative spelling includes the hyphenated “court-martial”) is a military court or trial held in military court to decide on the guilt or innocence of members of the armed forces subject to military law and, if the accused is found guilty, to determine the punishment.

Additionally, courts martial are used to try prisoners of war and those accused of war crimes. Courts martial can also be convened for other reasons, including the prosecution of martial law violations by civilians.

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In the United States, courts martial are mostly used to try members of the US military for violations of the Uniform Code of Military Justice, which is the US military’s criminal code.

Can the US president be court martialed?

In short no, a sitting US president cannot be court martialed because they are a civilian.

The POTUS functions as Commander-In-Chief of the military, but is not a member of it. Instead they remain a civilian, in observance of the US Constitution, which has a system of checks and balances in place to prevent abuses of power.

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Considering the reasons we just talked about for calling a court martial, none of those would apply to the US president.

Firstly, since the POTUS is not a member of the military, they can’t be tried for violations of the UCMJ – the authority presiding over a court martial.

Secondly, this type of trial is used during wartime to prosecute enemy forces outside the scope of regular civilian proceedings. This scenario does not apply to the president, since they are not a member of any enemy forces.

And, lastly, on a federal level, the POTUS is the only office with the power to impose martial law – although the decision isn’t passed instantly and unilaterally. On a state level, this power falls to the governor of each state.

Martial law involves a suspension of ordinary civil authority that can take place under – and is limited to – exceptional circumstances, such as war, natural disasters or civil unrest. In these rare cases, the military takes over responsibility for branches of the government that can’t operate under those circumstances.

Since the POTUS is the only power, on a federal level, capable of imposing martial law, they can’t be tried under it.

How to punish a president

As seen above, the president can’t be court martialed, as former officer Kemp opined in his Fox interview. Then what to do when a president misbehaves?

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According to the US Constitution, a naughty president must first be impeached. After articles of impeachment have been brought forth and accepted, they can be tried in a court convened by the Senate and presided over by the Chief Justice of the Supreme Court.

However, it is important to note that impeachment is not used to punish a president, but to protect the country from their abuses of power.

In this trial, the House of Representatives acts as the prosecutor and the POTUS may hire their own legal defence team, just like in any other trial. However, the rules governing what crimes are impeachable offences is a very strict and specific one, much more so than the crimes for which someone can be court martialed.

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Alexandra is Head of Entertainment at The Focus, managing a growing team of outstanding graduate and experienced writers. She has worked previously as an editor, writer and content specialist across web, video and social platforms and has a bachelor's in English Linguistics and a master's in Comparative Literature.