I’ve heard that the answer to this question depends on the situation. Suppose, for example, a US president decides to conspire to poison a city’s water supply to cover-up some administrative abuse or crime and scare and silence citizens. Would this be an offense for which the US military could court martial a US president?
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3 Answers
Almost certainly not.
The President is Supreme Commander of the armed forces, but that role is a civilian role. He is not member of the armed forces or subject to the Uniform Code of Military Justice.
Moreover given the President's unfettered power of pardon, it is likely that court-martial proceedings could not proceed against a sitting President, for the same reason that federal criminal proceedings are probably not possible. So if a President was subject to the UCMJ (for some reason) he/she still could not be court-martialled - though this is untested.
Poisoning water would obviously be a State crime, (assault or murder and probably some others too) not a military crime, and so could be tried in state court, probably after impeachment and removal of the President.
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1I don't quite follow the pardon section. Even if it is determined that a president could indeed pardon themselves for the offense they're being court martialed for, I don't see why that in principle precludes proceedings in the first place (although it could in practice). As I understand it, the rationale behind why federal criminal proceedings can't be brought against the president has nothing to do with pardon powers. Commented Jul 11, 2023 at 17:57
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12Pardoning is not the reason that federal criminal charges cannot proceed against the president. it has to do with a (highly criticized and disputed) DoJ opinion based primarily on a certain interpretation of Article 2 that "executive Power shall be vested in a President", and that the executive "cannot very well charge itself". As I said, "highly disputed", but it has been left in place by several administrations. Commented Jul 11, 2023 at 18:07
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4The pardon self idea was IMHO first really surfaced by Trump and not everyone was convinced of its legality then. I wouldn't count is as legal principle until tested in court. Otherwise, yes, the key point is that court martials are for military personnel and POWs, not civs. POTUS is not military and their position in the chain of command follows the standard custom of civilian oversight of the military found in democracies. npr.org/2021/01/09/955087860/can-trump-pardon-himself Commented Jul 11, 2023 at 19:43
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4The hesitance to prosecute a sitting president has little if anything to do with the pardon power and everything to do with traditional notions of immunity and the reasons for it.– phoogCommented Jul 12, 2023 at 9:41
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1@ItalianPhilosophers4Monica Actually, many civilian government personnel as well as contractors to the US government are governed by and under the UCMJ. Commented Jul 12, 2023 at 11:07
Can a US President be Court Martialed?
No, at least, not while the President is in office.
Courts martial have to be convened by an officer with a superior rank to the person tried in a court marital. 10 U.S.C. § 822(b) (Article 22 of the Uniform Code of Military Justice). This provision exists to prevent mutiny by court martial.
No one with the authority to convene a court martial in the U.S. military has a military rank greater than (or even equal to) the President, who is the commander-in-chief of the U.S. military. U.S. Constitution, Article II, Section 2.
So, no one has the authority to commence a court martial against the President.
More details than are present in the question are necessary to evaluate whether the President would also have immunity from criminal or quasi-criminal liability for his actions, which depends upon a newly enunciated test of the U.S. Supreme Court announced on July 1, 2024.
I'm not sure the previous answer is complete. Plenty of civilians have been court martialed, or tried before military tribunals in the U.S.A. All of John Wilkes Booth's conspirators, for example, were civilians, and all were tried by a military court.
I think the key to answering your question in the modern day, though, lies in the Geneva Convention. U.S. Military Courts have jurisdiction over war crimes. So if the President poisons the water in a city in Illinois, that would be a state crime. If the President poisons the water at an army base, that would be a federal crime. But if the President knowingly and willfully poisoned the civilian water supply in another country, that would be an obvious violation of the Geneva Convention, and an obvious war crime. Military courts would have jurisdiction, in that case.
Of course, there is a recent Supreme Court decision that wasn't around when you first posted. The president is said to now enjoy immunity from prosecution for official acts that are related to his core constitutional powers. What counts as an "official act", or a "core Constitutional power" has not yet been defined. But it is hard to imagine that poisoning a civilian water supply is somehow an official act.
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While poisoning might not be an official act, the evidence that he did it may be official acts (e.g. discussing how to do it with a cabinet secretary). The SCOTUS decision makes most of this evidence inadmissable, so good luck prosecuting.– BarmarCommented Jul 17 at 19:23
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1Is being tried in a military tribunal the same as court martial? One of the options for the 9/11 detainees was military tribunals.– BarmarCommented Jul 17 at 19:25
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Courts martial have to be convened by an officer with equal or greater rank than the person tried before a court marital. No one has a military rank equal to or greater than the commander-in-chief, so no one has the authority to commence a court martial against the President.– ohwilleke ♦Commented Jul 17 at 21:06