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Should the cheeseheads back off Kinzinger?

Wednesday, Feb 27, 2019

* AP

Wisconsin National Guard officials said Tuesday they’re looking into whether to punish an Illinois congressman who belongs to the Wisconsin detachment for criticizing Gov. Tony Evers’ decision to withdraw troops from the U.S. southern border.

Republican Rep. Adam Kinzinger is a Wisconsin Air National Guard pilot with the rank of lieutenant colonel. He ripped Evers Monday on Twitter and on Fox News for ordering Wisconsin troops to pull out of Arizona.

Wisconsin statutes state that any commissioned officer who uses “contemptuous words against the president, the vice-president, members of congress, the secretary of defense, the secretary of a military department, the secretary of homeland security, or the governor or legislature of the state of Wisconsin shall be punished as a court-martial may direct.”

Evers is a Democrat. His position as governor automatically makes him the commander-in-chief of the Wisconsin National Guard. Asked if Kinzinger might be disciplined for his remarks, Guard spokesman Capt. Joe Travato said the Guard and Evers’ office are looking into the matter.

The statute is here.

* But

A spokeswoman for Kinzinger said the Lieutenant Colonel was off duty when he made his remarks about Evers.

“The Congressman is off-duty and has the right to exercise his freedom of speech as he so chooses, just as he has done when critical of the current President and the President before him,” spokeswoman Maura Gillespie said.

My first reaction to this story yesterday was that the National Guard is for citizen soldiers. Citizens have a fundamental right and duty to speak their minds. If Kinzinger had made his remarks while on duty, that’s one thing. He did not do that. Gov. Evers, I believed, should grow some thicker skin.

* However, this is from the Military Times

University of Wisconsin-Madison law and political science professor Donald Downs, who studies free speech issues, said he knows of no exceptions in state law that would allow off-duty National Guard personnel to criticize the government.

However, it’s unclear whether the First Amendment’s free speech guarantee would trump state statutes in such cases, Downs said. The First Amendment protects an employee’s speech if he or she is speaking as a citizen, not as an employee, but the scales still likely would tilt toward the military if the soldier was criticizing a specific lawful order, he said.

“I doubt that the fact the guardsman was off duty would matter,” Downs said.

Kinzinger did, indeed, criticize a lawful order from his commander in chief.

I do not want this post to devolve into a debate on the wall or whatever, so do your utmost to stick to the topic at hand or I’ll delete you and maybe even ban you.

- Posted by Rich Miller        

97 Comments
  1. - Not a Billionaire - Wednesday, Feb 27, 19 @ 10:02 am:

    No. He criticized a lawful order. He should get the same treatment as any Guardsmen.


  2. - Anonymous - Wednesday, Feb 27, 19 @ 10:03 am:

    I would think discretion should be excercised here. It is reasonable for a person to say “i dont like this move” or “i think this is a bad idea and this is why” .. I think that should be protected, and better yet why even go after civil discourse of that nature? I have no idea what Kinzinger actually said.


  3. - wordslinger - Wednesday, Feb 27, 19 @ 10:07 am:

    Curious that Kinzinger is not in the Illinois Air National Guard.

    I don’t know how the lawyering would go on the issue if it gets that far, which I doubt it will.

    But I’m certain that the publicity is serving Kinzinger’s political objective, which is to protect his right flank from a primary challenge.


  4. - Lucky Pierre - Wednesday, Feb 27, 19 @ 10:08 am:

    in addition to his duties with the National Guard, Kinzinger is an elected Congressman who, (unlike a lot of politicians including the Governor of Wisconsin who have strong opinions about the subject matter) has actual first hand experience on the border that should not be dismissed out of hand.


  5. - NIU Grad - Wednesday, Feb 27, 19 @ 10:09 am:

    “Curious that Kinzinger is not in the Illinois Air National Guard.”

    That surprised me too. Not criticizing, but I am curious how that came to be.


  6. - FormerParatrooper - Wednesday, Feb 27, 19 @ 10:14 am:

    The question is did he make the statement in his capacity as a LTC or as a Congressman?


  7. - Last Bull Moose - Wednesday, Feb 27, 19 @ 10:15 am:

    Kinzinger was intemperate and foolish in his phrasing. He could have made a policy argument without challenging the order. Some discipline would be appropriate.


  8. - Retired Educator - Wednesday, Feb 27, 19 @ 10:17 am:

    He was asked a question, and he gave his opinion. I don’t see a problem with that. I agree the Governor needs thicker skin.


  9. - Thomas Paine - Wednesday, Feb 27, 19 @ 10:17 am:

    Kinzinger’s spox is incorrect. On this point, there is no “off duty.”

    As Mark Kirk knows, you live by the uniform, you die by the uniform.

    Frankly, I thought Kinzinger crossed the line when he spoke publicly about what he saw while flying missions. I kinda thought that stuff was not for public consumption. If intel about what was observed during guard missions is to be made public, that ought to be a command decision and not left up to an individual officer shooting off his mouth to the press.

    Speeches from the floor of Congress are different.

    Kinzinger should be disciplined, but no more or less harshly than a non-congressman who help a press conference making the same remarks.


  10. - West Side the Best Side - Wednesday, Feb 27, 19 @ 10:17 am:

    Rep. Kinzinger should have put on his congressional hat and spoken from the floor of the House. Twitter and Fox don’t provide him with any protection what what seems to be a member of the Guard criticizing his orders.


  11. - phocion - Wednesday, Feb 27, 19 @ 10:19 am:

    Kinzinger has criticized Trump on a number of occasions, especially in the arena of foreign policy. Should he be disciplined by the Wisconsin National Guard for criticizing the national Commander in Chief?


  12. - Responsa - Wednesday, Feb 27, 19 @ 10:19 am:

    Rep. Kinzinger returned from his most recent deployment to the southern border and appeared on several Sunday shows as a Congressman stating he was convinced there was both a national emergency and humanitarian crisis there and would vote that way as a U.S. Congressman. He said he and others in the air guard had done important work there and saved lives. He appeared to be genuinely stunned at what he witnessed. I imagine his shock with the Wisc. governor’s sudden change in direction prompted his specific cry out. As an elected official Kinzinger has in fact also at times been highly critical of President Trump who is also his Commander in Chief and nobody batted an eye.


  13. - Thomas Paine - Wednesday, Feb 27, 19 @ 10:21 am:

    @FormerParaTrooper -

    When you are an officer and a Congressman, you are both at all times.

    I think the only time comments by a Congressman are exempt from civil, criminal or military law is when made from the floor of Congress.

    Military personnel do not have the same First Amendment rights the rest of us enjoy.


  14. - YjqvTgXyHA - Wednesday, Feb 27, 19 @ 10:24 am:

    fZrDHkrNAX iASXAtNuwZ OVhWzggoQZ QtKjHJHHTA xtbTjjDqTr pVpBUdtXxS FhvIJqhgqz bdXmjKylFZ XZOkoJWfNn gJIHmDPgQz


  15. - Smalls - Wednesday, Feb 27, 19 @ 10:28 am:

    As someone who served in the National Guard, there was never an “off duty” from an expectations standpoint. He should be punished, and someone at his rank should know this. No exceptions.


  16. - yinn - Wednesday, Feb 27, 19 @ 10:29 am:

    ==Rep. Kinzinger should have put on his congressional hat and spoken from the floor of the House.==

    Yes, he doesn’t seem to understand the need for boundaries around each of his roles. You see the same issue with his Facebook presence.


  17. - Honeybear - Wednesday, Feb 27, 19 @ 10:29 am:

    Kinzinger knows better.
    He knows full well you keep your mouth shut.
    In the Navy we’d call him a “sea lawyer”.
    Always a justification for breaking the rules.
    It doesn’t matter that he’s a congressman.
    It doesn’t matter that he was “off duty”
    An O-5 should absolutely know better.
    Zip it flyboy.
    He should absolutely be disciplined.


  18. - grand old non-partisan - Wednesday, Feb 27, 19 @ 10:30 am:

    I know it’s rude to answer a question with a question, but this is a really interesting question that deserves some adult-level discussion. I think the issue at hand is less about the statute’s impact on Kinzinger as a citizen and more about the conflict between his roles as a legislator and reservist. I mean, the statute also prohibits him from speaking contemptuously of the President and the SecDef, as well as his own colleagues in the Congress. So, can/should a Member of Congress really be prohibited by law from speaking out against a co-equal branch of government, let alone his peers in the legislative branch?? Can/should a person simultaneously serve in both the military and the Congress??


  19. - Earnest - Wednesday, Feb 27, 19 @ 10:30 am:

    The political part of this is what they’ll make of it. From my frame of reference I’d worry more about the HR perspective…make as little fuss about it in terms of discipline as humanly possible while making sure you don’t set a precedent that will pose difficulties if you have to deal with a real issue related to those policies in the future.


  20. - Anonymous - Wednesday, Feb 27, 19 @ 10:31 am:

    So it actually begs the case should folks on active duty be allowed to serve as elected officials?
    If he was a military officer at all times 24/7/365 how was it ok for him to walk around the last 8 years criticizing Obama?
    Tammy Duckworth was able to criticize Trump outside the walls of Congress, how is that ok?
    Can you be both? Which duty outweighs the other?


  21. - Ret ARNG Atty - Wednesday, Feb 27, 19 @ 10:32 am:

    I’m no Kinzinger fan, he wears his military experience on his sleeve to prevent any criticism.

    But according to Rich’s citation the prohibition is against criticizing officials, not orders.

    Kinzinger has been a frequent and vehement Trump critic from before the 2016 election, when he endorsed a succession of losers for the Republican nomination.

    It is interesting, then, that the Wisconsin National Guard leadership or governor only decides now to investigate him for contemptuous remarks, when the prohibition extends to contemptuous words against the president. What about the last two years and his comments on Trump?


  22. - A State Employee Guy - Wednesday, Feb 27, 19 @ 10:32 am:

    I wonder if the constitutionality of that statute has ever been challenged. It is overly broad and vague, unless someone here can define “contemptuous words” for me.


  23. - ChicagoVinny - Wednesday, Feb 27, 19 @ 10:33 am:

    Put aside the politics, imagine if this precedent were allowed to stand.

    Every time a lawful (but controversial) deployment order came through, a large group of active Guard personnel went to their local reporters and complained about the order.

    I don’t think that works. I don’t see how you maintain military discipline in that world.

    Rep. Kinzinger should be punished according to the law.


  24. - Sam Hall - Wednesday, Feb 27, 19 @ 10:37 am:

    Interesting problem. Contemptuous language is in the ear of the beholder. If the argument is that you are always on duty, every member of the Wisconsin National Guard that is a member of a legislative body should resign since it gives the Governor too much control over your speech and actions (could voting against the governor’s wishes, plans, etc be contemptuous?)

    Also what about a Governor, as the head of the State militia, taking actions(withdrawing troops) against the President during a national emergency that weaken the response to the National emergency?


  25. - Stumpy's bunker - Wednesday, Feb 27, 19 @ 10:37 am:

    He is an officer in his military unit, and criticized the judgement of his commander in chief.

    He should return as Corporal Kinzinger.


  26. - FormerParatrooper - Wednesday, Feb 27, 19 @ 10:43 am:

    Thomas Paine, I understand the restrictions of speech by uniformed members very well. His dual position does raise some interesting questions. I am not sure if he is only allowed to speak on his capacity as a Congressman on the floor of Congress without those exemptions you mentioned. It appears that politicians speak from any venue they feel like daily.

    If he is considered as having both positions full time, how do we differentiate what he is allowed to say?

    If it comes to an Art 32 hearing, I would be interested to see how the prosecutor would frame things.

    I am not condoning or criticizing his opinion, just interested in the politics of this and what precedent it may set.


  27. - Todd - Wednesday, Feb 27, 19 @ 10:45 am:

    there is no “off-duty” And he should know better. But this appears to be a case where very old law may need some updating.

    Soldiers complaining is just that. They do it all the time. The critizise mission perameters and others things. Most never take it to a public forum. But with twitter and Facebook, it is easy to let a single moment wreck a career.

    Kinzinger is also a congressman which puts him in an odd catagory.

    And its not that uncommon for people from other states to serve in the Guard of another state.


  28. - JS Mill - Wednesday, Feb 27, 19 @ 10:49 am:

    =When you are an officer and a Congressman, you are both at all times.=

    Soldiers enjoy limitations to their civil rights due to the nature of military service and the expectation that soldiers obey orders.

    Kinzinger knows this.

    I do wonder how many times this law has been invoked and prosecution conducted. My guess is that it hasn’t happened much, but that is a guess. Seems political which undermines the legitimacy versus if it was something they followed through on all the time.


  29. - Glengarry - Wednesday, Feb 27, 19 @ 10:50 am:

    Loose lips sink ships. Any 0-5 should know better than to run their mouth like this. The military is not a democracy. Sometimes you have to keep your mouth shut on and off duty.


  30. - Just Observing - Wednesday, Feb 27, 19 @ 10:51 am:

    As others have pointed out, this is more complicated than a plumber serving in the national guard and criticizing his or her commanding officer. I would think (but what do I know) that a Judge would have to consider his position as a Congressman which imposes a duty on him to review, make decisions, and relay his thoughts to his constituents related to federal policies.


  31. - Galena Guy - Wednesday, Feb 27, 19 @ 10:51 am:

    LP & Responsa- thanks for the Nathan Jessup defense of Kinzinger. Honey bear, you are right.


  32. - A Jack - Wednesday, Feb 27, 19 @ 10:54 am:

    You are never off-duty in the National Guard. You are on-call 24 hous a day, seven days a week. And by criticizing a superior officer, he is guilty of insubordination. You can gripe about your superiors all you want in private and most do, but public criticism is not allowed. I doubt if he will get more than a letter in his file, but he shouldn’t expect any more promotions in his career.


  33. - 47th Ward - Wednesday, Feb 27, 19 @ 10:59 am:

    ===But this appears to be a case where very old law may need some updating.===

    Lol Todd. I’m tempted to suggest another old law in need of updating, but no. Not gonna do it.


  34. - TheGoodLieutenant - Wednesday, Feb 27, 19 @ 11:06 am:

    I did not find Rep. Kinzinger’s comments to be very “contemptuous”.


  35. - The Dude Abides - Wednesday, Feb 27, 19 @ 11:13 am:

    Legally they are within their rights to discipline Kinzinger. Being off duty is a weak defense and comments that he made previously criticizing the POTUS aren’t really relevant.
    That said I think it might be best if the Governor would be the bigger man and not pursue prosecution.


  36. - Thomas Paine - Wednesday, Feb 27, 19 @ 11:16 am:

    @FormerParatrooper -

    I am quite sure enough for the both of us.

    Article 1 Section 6 of the US Constitution says:

    “They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.”

    In other words, the Constitution grants members of Congress broad immunity from slander etc. for statements made on the floor of the House. And if Kinzinger had made these statements from the floor of the House, he clearly would have been beyond the reach of military law.

    I think every Constitutional scholar will agree that had the Framers intended for Congressmen to have broad exemption from libel, slander, etc for all comments made anywhere, they would not have included language narrowing the protection.

    They certainly were well versed in military command, structure and discipline so I do not think one can argue this was an unforeseen conflict in roles. Washington was, in fact, a general.

    It does make me think that our military ought to implement rules prohibiting state lawmakers and Congressmen from military service, discharging them honorably as we would a lottery winner.


  37. - A Jack - Wednesday, Feb 27, 19 @ 11:19 am:

    UCMJ article 89 would trump any state law. And the UCMJ always applies whether on duty or not. He should know that since it gets drummed into your head from the day you take the oath.


  38. - DoubleStandardsAbound - Wednesday, Feb 27, 19 @ 11:21 am:

    If Kinzinger were a liberal criticizing Trump, nothing would happen. But since he plays for the wrong team, he’s in deep doo doo.


  39. - wordslinger - Wednesday, Feb 27, 19 @ 11:23 am:

    –As an elected official Kinzinger has in fact also at times been highly critical of President Trump who is also his Commander in Chief and nobody batted an eye.–

    No, ardent Trump supporters have been critical of Kinzinger for that. Hence, his current shift. It’s all about the primary.


  40. - WH Mess - Wednesday, Feb 27, 19 @ 11:27 am:

    I too, have some concerns about legislators in the reserve, but I think we need more military experience in Congress, not less, so I’m inclined to keep it. Give him 200 pushups and KP, but that discipline should not be a public issue.


  41. - A guy - Wednesday, Feb 27, 19 @ 11:42 am:

    IMO, this is a far, far stickier wicket for Gov.Evers. Wisconsin has become a notoriously swing state.
    Withdrawing Guardsmen on the “real” Commander and Chief is a somewhat tactical, political, gutsy move that might have consequences of it’s own.
    Going after an officer for what are critical, but hardly over the top comments while off-duty, as a “Reserve”, is more than a little thin-skinned.
    Brief concession, a couple of Hail Mary’s and I’d put this behind me if I were Evers. It’s worse for him.


  42. - Bigtwich - Wednesday, Feb 27, 19 @ 11:44 am:

    ==Tammy Duckworth was able to criticize Trump outside the walls of Congress, how is that ok?==

    She retired from the Illinois Army National Guard in October 2014 as a lieutenant colonel. You?


  43. - Norseman - Wednesday, Feb 27, 19 @ 11:46 am:

    === As an elected official Kinzinger has in fact also at times been highly critical of President Trump … ===

    Kinzinger occasionally talks the talk - especially when appearing on the cables, but he rarely walks the walk. Typical of today’s GOP pols.

    In this instance, he was deployed by WI and used that deployment for political brownie points. Bad, bad, bad.


  44. - DuPage Bard - Wednesday, Feb 27, 19 @ 11:50 am:

    So a multitude of folks here believe Kinzinger is wrong and should be disciplined for speaking against his Commander in Chief. Ted Lieu is currently serving in the Air Force Reserve Command as a Colonel. He is also an Assistant Whip, are we to believe he has never ever said anything bad about Trump as Commander in Chief? Questioned his ability to lead?
    This is a fine line folks. And if you believe Kinzinger is wrong then it gives Trump and the military all options to go after Lieu any time he criticizes the President.


  45. - Thomas Paine - Wednesday, Feb 27, 19 @ 11:54 am:

    @A Guy-

    Military order has to Trump political considerations when you are commander in chief.

    And it’s not up to Evers.


  46. - DuPage Bard - Wednesday, Feb 27, 19 @ 11:55 am:

    Calling the Commander in Chief crazy unhinged etc is that the manner in which a Colonel should be speaking?
    I’m not saying go after Lieu but everyone saying go after Kinzinger should take a breath first.https://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-rep-ted-lieu-is-trolling-donald-trump-1485470617-htmlstory.html


  47. - Pot calling kettle - Wednesday, Feb 27, 19 @ 11:59 am:

    Kinzinger is a creature of DC. Looking good on TV and letting everyone know he is knowledgeable is very important to him. His only experience beyond Congress is 6 yrs as an Air Force pilot. He comments on his “real world” experiences while on Guard duty because that is all he has. I think he needs to learn to be more circumspect in his actions. If he wants to play these two roles (Congressperson and military officer), he needs to follow the rules of both roles. When they conflict, he should defer to his military obligation and share his field experiences in committee when requested like all other active duty officers. If the Wisconsin Guard wants to discipline him, they need to do it in a way that does not make him a martyr.

    I do have one concern: If Illinois gets in a fight with Wisconsin, which side will Adam be on?


  48. - A guy - Wednesday, Feb 27, 19 @ 12:02 pm:

    ==Military order has to Trump political considerations when you are commander in chief.==

    Of which in this case, Adam serves 2 Commander in Chiefs…One ordered troops to the border and the other ordered them withdrawn.

    The further this gets into yesterday’s news, the better for both Adam and Tony…but especially Tony. Narrow wins up there in Cheeseland. Brie-like mandates.


  49. - DuPage Bard - Wednesday, Feb 27, 19 @ 12:04 pm:

    Tom Cotton criticized Barack Obama constantly, his Commander in Chief, while still being a First Lieutenant in the Army Reserves. Should he have faced discipline?
    Again put into perspective, if you say that an elected official cannot question or criticize the orders or decisions by the Commander in Chief because it violates their current military service then you cannot have active duty members serve in elected capacities. As part of the role of being an elected official is to do exactly that question and critic the other branch of government.


  50. - Chicago_Downstater - Wednesday, Feb 27, 19 @ 12:12 pm:

    I think that as the statute stands he should receive some form of punishment. @A Jack doubted that he’d get more than a letter in his file. I feel that that should be the harshest punishment he receives.

    But I must say–and I never thought I’d ever say this–I agree with @Todd. This rule seems like it could use a refresher.

    I understand that insubordination and questioning lawful if controversial orders can get folks killed in a military setting under specific circumstances. But outside of those specific circumstances, it feels weird to punish those sacrificing the most for our first amendment right for exercising free speech.

    Still I’ve never served, so I defer to those that are serving or have served in regards to issues like this.


  51. - Honeybear - Wednesday, Feb 27, 19 @ 12:12 pm:

    A Guy, as a former Navy Lieutenant, I can absolutely tell you what Kinzinger did was against military regulation and contrary to good order and discipline. He should absolutely face discipline for it. The chain of command exists in the military for many many reasons. If he had a problem with the order he takes that concern to his commanding officer NOT to Fox News and Twitter. AND he does that quietly and privately.
    “Praise in public, Criticize in private” in the Navy was a strong directive in “wardroom etiquette”. I’m sure some saying exists in the Air Force. But an O-5 absolutely knows this stuff. I was an O-3 and I knew it. I opened my mouth once with an intemperate opinion as an Ensign and CMDR Gianulis let me have it. “Seal the hatch Ensign” was the last thing heard clearly before he put me on blast.
    You all know how intemperate I can be. Well, I learned real fast.
    You can’t do that in the military. You especially can’t do that on twitter and Fox News.


  52. - Coastie - Wednesday, Feb 27, 19 @ 12:16 pm:

    @Wordslinger & @NIU Grad,
    I don’t know for certain, but I think that he is Wisconsin ANG because of the type of airframe they fly and location. He was a KC-135 driver up at MKE before going to the RC-26 (which is what he was flying down south). Although they have the KC-135 for Illinois ANG, they are stationed down at Scott AFB compared to Milwaukee. Shorter drive from where he is from.
    As a fellow military officer and Constituent of his, I think he should know better than to shoot off his mouth like he did and he needs to be held responsible. Unfortunately, I am sure they will decide to look the other way since he is an O-5 and a member of Congress.


  53. - Blu buddy - Wednesday, Feb 27, 19 @ 12:30 pm:

    No they should not. In fact he is selling flags on his congressional web page of flags he flys in military craft. He is abusing his position.


  54. - Rasselas - Wednesday, Feb 27, 19 @ 12:35 pm:

    Kinzinger can’t have it both ways. His whole brand is premised upon his military record and experience. I’m sure that his continued service is in no small measure intended to continue to cultivate that brand. But with that goes following the rules of the military. If we wants the freedom to ignore those rules, perhaps he should resign from the National Guard.


  55. - Retired MsO - Wednesday, Feb 27, 19 @ 12:50 pm:

    Ok all the input from former active duty guys, and people who never served. I’m a retired guard guy. Kinzinger is totally fine in doing this. First his criticism was not personal (attacking character) and was questioning decisions.

    Secondly. Everyone that says you are an officer and a guardsman 24/7, you are incorrect. You can be activated at any moment by the President, but only when on a pay status are you under UCMJ or any law related to military members. If he was on pay status and did those, then maybe he could get a letter of repremand. If he was not on pay status (he was not) he is a civilian under civilian laws which of course protect political speech.

    Do you really want a future where elected officials can’t serve in the reserve forces? Everyone says we need more military perspective but then when that perspective disagrees with your view you want to change the constitution?

    Bottom line. Just as a guard pilot who also flies for American Airlines is wearing an American Airlines uniform while in that job, a congressman who does the guard wears a congressman uniform when not on pay status and can say and dang thing he wants, on the floor, on twitter or in the bar. Think this through. Now part time military is expected to live under full time rules? If that was the case you would need to pay every reservist full time for the suspension of their rights.


  56. - wordslinger - Wednesday, Feb 27, 19 @ 12:55 pm:

    –Of which in this case, Adam serves 2 Commander in Chiefs.–

    That does not make sense logically or Constitutionally.

    Trump did not federalize the Wisconsin Guard, or any other state guards. They were deployed by states after the president’s request. Some states have refused the request or set conditions on their service.


  57. - DuPage Bard - Wednesday, Feb 27, 19 @ 12:57 pm:

    So the consensus is if you are active duty, reserves or guard it is a direct contradiction of your role as an elected representative tasked with the job to hold accountable the Executive branch.
    Looks like anyone serving in the Military, currently holding office, has some serious decisions to make.


  58. - the Patriot - Wednesday, Feb 27, 19 @ 1:06 pm:

    It is a serious separation of powers issue. If you work are a soldier under executive authority, but want to be in congress you are straddling a fence.

    Military discipline requires action, but I don’t see court martial. Practically, he is probably done from a promotion standpoint which will get into his pocket and prestige of advancement. Seems enough to me.


  59. - Retired MSO - Wednesday, Feb 27, 19 @ 1:06 pm:

    Dupage, consensus on a message board is different than consensus on the constitution or laws. Those laws only apply when on paid status to reservists. Period. There is plenty of old UCMJ case law that bears this out


  60. - Honeybear - Wednesday, Feb 27, 19 @ 1:19 pm:

    It’s not a direct contradiction Dupage Bard and it’s not hard at all to keep your mouth shut publically about military matters. It’s like recusal in a judicial sense. Concerns about a mission should be done to one’s CO/superior in private. What Kinzinger did was jump the chain of command and speak publically on something that was not his job to speak on, ie criticize Evers, his Commander in Chief for a lawful order to withdraw. He could even bring it up privately to other authorities, the Pentagon etc, in his capacity as a Congressman.
    What CANNOT ever be done in public by a member of the military is to publically challenge a lawful order and be contemptuous towards his Commander in Chief, Governor Evers and hiding behind his Congressional status.
    No sir
    No Ma’am
    You cannot do that.
    That is in every way shape and form against good order and discipline.
    And cool it on the “whataboutisms”
    We’re not talking about Lieu or Cotton.
    We’re talking about Kinzingers behavior as an Air Force officer, who in my understanding Retired MsO was called up for deployment when he made these remarks. Maybe I’m wrong on that but still
    Tell me Retired MsO how his remarks were good for “good order and discipline”?


  61. - Pot calling kettle - Wednesday, Feb 27, 19 @ 1:22 pm:

    ==Looks like anyone serving in the Military, currently holding office, has some serious decisions to make.==

    Elected officials serve in multiple roles all the time. When they choose to do so (and it is a choice) they are required (often by law) to make certain accommodations when the rules/duties/authorities overlap. A federal employee can run for mayor but cannot accept campaign contributions or ask for certain endorsements. A labor judge can serve on a school board but cannot participate in collective bargaining. In this case, Kinzinger can serve in both roles, but, in so doing, he needs to respect the structure of command and the rules governing his service.

    Furthermore, Kinzinger serves as a pilot, not in command. His knowledge and understanding of what goes into a command decision is limited. His criticisms should be limited as well and taken with the understanding that his view of the deployment is limited to his personal experience.

    He overstepped.


  62. - statehoss - Wednesday, Feb 27, 19 @ 1:36 pm:

    >he knows of no exceptions in state law that would allow off-duty National Guard personnel to criticize the government

    That would be a dubious basis for a prosecution. There are surely 10’s of thousands of people in the Wisconsin Guard. The idea that none of them can, and none of them ever have “criticized the government” is ridiculous.

    Criticizing a lawful order may be different. But that poli sci prof should learn to speak more carefully.


  63. - Anonymous - Wednesday, Feb 27, 19 @ 1:36 pm:

    ==Furthermore, Kinzinger serves as a pilot, not in command. His knowledge and understanding of what goes into a command decision is limited.==

    LOL. The never-in-uniform governor of WI has more knowledge and understanding of what goes into a military “command decision” than Rep. Kinzinger does? Now that’s reaching.


  64. - Responsa - Wednesday, Feb 27, 19 @ 1:37 pm:

    Sorry. 1:36 was me.


  65. - Retired MSO - Wednesday, Feb 27, 19 @ 1:42 pm:

    Honey bear. He was not on pay status and was off of duty. That blows your argument out of water. Good order and discipline applies to military…. when he is in status for the military. When he is out of status he can do anything he wants. If he breaks the law and murders someone, he is punished under civilian law and the UCMJ has no authority over him if he was off duty. It’s really basic. Active duty soldiers who receive a regular paycheck and never come off duty because they are full time then cannot criticize. However, even so you would have to argue that questioning orders is contemptuous which it is not.

    Active duty military members post anti trump stuff on their media all day. If kinzinger said that General Smith is a poor general he would be able to have and say that opinion too. The fact that he is in congress and has a bigger megaphone is completely separate from the fact that he has a right to an opinion, and to state that opinion, in any venue…. if he is not on pay status.

    The Ted Lou point is accurate. It’s not whataboutism. You don’t like Kinzinger’s opinion and thus find reasons to say discipline, when the evidence is beyond clear that he is free to do so. I did twenty years as a reservist. I know these rules.


  66. - Honeybear - Wednesday, Feb 27, 19 @ 2:02 pm:

    Responsa- Gov Evers is the Commander in Chief of the Wisconsin Air National Guard in which Lt Col Kinzinger is a pilot.
    The Chain of command is absolutely clear.
    Lt. Col Kinzinger criticized a lawful order to withdraw, nationally on twitter and Fox News.
    The military service of Gov. Evers is irrelevant.
    The thickness of Gov. Evers skin is irrelevant.
    The Commander in Chief of the Wisconsin Air National Guard gave the lawful order to withdraw.
    Period. Done. Full stop.
    Aye Aye Sir or whatever the Air Force equivalent is
    is the only response to be made publically.
    https://www.thebalancecareers.com/punitive-articles-of-the-ucmj-3356854

    Praise in Public, Criticize in Private
    “Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged.”


  67. - Honeybear - Wednesday, Feb 27, 19 @ 2:06 pm:

    Retired MsO, I’m going to make the assumption that you were not an officer. Is that correct?
    I have just cited the UCMJ. Your knowledge of the UCMJ is not relevant. Cite your argument.


  68. - Demoralized - Wednesday, Feb 27, 19 @ 2:06 pm:

    ==has the right to exercise his freedom of speech==

    Your freedom of speech is limited if you are in the military.


  69. - Retired MSO - Wednesday, Feb 27, 19 @ 2:07 pm:

    Honeybear you bias is coming through. Again UCMJ doesn’t apply to people not on pay status. Same with a chain of command. Show me where it does before again quoting the UCMJ


  70. - Retired mso - Wednesday, Feb 27, 19 @ 2:08 pm:

    Yes i was an officer. Major. Quote the UCMJ more and I’ll again remind you that the UCMJ is applicable when a reservist or guardsman is on duty.


  71. - Honeybear - Wednesday, Feb 27, 19 @ 2:20 pm:

    This has nothing to do with my bias sir.
    It’s irrelevant
    And no sir,
    You prove your argument by citing it from the UCMJ. I did. I’m saying you can’t.
    But I’m not going to do it for you.
    Respectfully


  72. - Pot calling kettle - Wednesday, Feb 27, 19 @ 2:28 pm:

    ==The never-in-uniform governor of WI has more knowledge and understanding of what goes into a military “command decision” than Rep. Kinzinger does? Now that’s reaching. ==

    Responsa, like it or not, that’s the chain of command. Our military is under civilian control. The experience (or lack thereof) of the chief executive is irrelevant once the voters decide to put that person in charge.

    To your specific point, yes, the “never-in-uniform governor” is in a command position and has access to more knowledge as well as understanding via his chain-of-command. Pilot Kinzinger has access to his personal experience and whatever his fellow pilots have shared with him. The commander absolutely has more knowledge and understanding of the situation than the pilot patrolling a limited airspace for two weeks.


  73. - A Jack - Wednesday, Feb 27, 19 @ 2:34 pm:

    It is very rare for a National Guard soldier to be prosecuted under the UCMJ or the state equivalent even on pay status. He did however publicly criticize his CIC and should do the honorable thing and either resign his commission or transfer to another state’s guard. If not he should get a letter of reprimand. I don’t care if you are in a pay status or not. If you go to the base club after drill is over and punch your CO in the nose, you will face disciplinary action and civilian law will not apply since you are at the base club (but not in pay status).


  74. - wordslinger - Wednesday, Feb 27, 19 @ 2:41 pm:

    –The never-in-uniform governor of WI has more knowledge and understanding of what goes into a military “command decision” than Rep. Kinzinger does?–

    Civilian command of the military is kind of a big deal in our Constitutional system. From Day One.

    The Posse Comitatus Act is also a big deal, hence the request for state guard units serving under state authority.


  75. - Responsa - Wednesday, Feb 27, 19 @ 2:42 pm:

    ==His (Kinzingers) knowledge and understanding of what goes into a command decision is limited.===

    These are your own words, Pot. In that quote it appears you were placing emphasis on the governor’s putative superior knowledge and understanding of military “command decisions”, separate from the WI Constitutional role he has when issuing an order as CIC. Those really are 2 different issues.


  76. - Demoralized - Wednesday, Feb 27, 19 @ 2:57 pm:

    Retired mso:

    While the UCMJ may not apply to a guard member not on duty status, he would still be subject to the Wisconsin Code of Military Justice, which addresses contempt toward officials, which includes the Governor.


  77. - Last Bull Moose - Wednesday, Feb 27, 19 @ 3:01 pm:

    Retired mso makes a good point. If he is correct, the Wisconsin National Guard should stand down. Sounds like an episode of JAG.


  78. - Demoralized - Wednesday, Feb 27, 19 @ 3:02 pm:

    The code applies to members of the state military at all times, according to the code.

    From the Wisconsin code:

    Contempt toward officials. Any commissioned officer who uses contemptuous words against the president, the vice-president, members of congress, the secretary of defense, the secretary of a military department, the secretary of homeland security, or the governor or legislature of the state of Wisconsin shall be punished as a court-martial may direct.


  79. - Retired MSO - Wednesday, Feb 27, 19 @ 3:09 pm:

    Ugh. Listen I’m done with the back and forth. The Wisconsin code has same rules regarding on or off pay status. In it it says “at all times” referring to the following text applying to state forces not federal forces. Come on man, good try though


  80. - Retired MSO - Wednesday, Feb 27, 19 @ 3:10 pm:

    Look at article 5 of same code. Referring to who is covered…. ie not if not on pay status


  81. - Pot calling kettle - Wednesday, Feb 27, 19 @ 3:11 pm:

    ==In that quote it appears you were placing emphasis on the governor’s putative superior knowledge and understanding of military “command decisions”, separate from the WI Constitutional role he has when issuing an order as CIC.==

    As I stated, the pilot’s access to the knowledge and understanding that go into a command decision is limited. The Governor’s knowledge, as CIC, is superior. As to the knowledge and understanding of Kinzinger vs Evers in the realm of military decision-making, I do not have the information to comment; I do not know of either person’s educational background nor of the training they may have received with respect to command and leadership, military or otherwise. I do know that Gov. Evers, as a result of his position, can call upon the expertise of his subordinates, who certainly have more education and experience in these matters than pilot Kinzinger. No matter how you look at this, Kinzinger is operating above his role, rank, and experience. If Kinzinger wants to be a commander, he should pursue that role and work his way up. If he wants to comment as a civilian, he should retire from his military role. If he wants to be a Congressman and military pilot at the same time, he needs to respect the rules of both roles as do others who serve in multiple roles.


  82. - Demoralized - Wednesday, Feb 27, 19 @ 3:14 pm:

    And there is this that is also part of the applicability section:

    “is a nexus between the act or omission constituting the offense and the efficient functioning of the state military forces”

    I have no idea whether there is or not. That’s above my pay grade. And I suspect it’s above your’s too (no matter how much you try to shut the conversation down and proclaim you’re the expert)


  83. - Demoralized - Wednesday, Feb 27, 19 @ 3:16 pm:

    ==good try though==

    And I’m not “trying” to do anything. I think this is a difficult one. I don’t know whether anything should be done or not.


  84. - Honeybear - Wednesday, Feb 27, 19 @ 3:28 pm:

    Another great article
    https://suffolklaw.com/contempt-toward-officials-in-the-u-s-military-only-the-commander-in-chief-can-get-away-with-using-twitter/
    Retired MsO- again pay status is not mentioned anywhere and point 5 of Art.88 has nothing to do with pay status.
    I think you can’t cite it so you’re bluffing.


  85. - Retired MSO - Wednesday, Feb 27, 19 @ 3:36 pm:

    https://cdn.ymaws.com/www.roa.org/resource/resmgr/LawReviews/2013/13164-LR.pdf

    Clear there. Title ten is UCMJ. Title 32 is state forces. As the above article states since you need something from the internet, you’re argument is inaccurate for someone off orders. Heavens to Betsy


  86. - Demoralized - Wednesday, Feb 27, 19 @ 3:54 pm:

    ==you’re argument is inaccurate for someone off orders==

    Not necessarily when we’re referring to the Wisconsin Code.

    There’s another part of that sentence in the Article you refer to which is an “or”:

    “or, if not in a duty status, that there is a nexus between the act or omission constituting the offense and the efficient functioning of the state military forces”

    Again, I’m not an attorney and could not tell you whether that may apply in this case. Just because you say something doesn’t make it the absolute truth. This is a complicated case.

    At the very least he made a poor judgment when he specifically criticized the Governor, whether he was on duty or not. He’s a Lt. Colonel in the Wisconsin National Guard. He shouldn’t be specifically criticizing the Governor. He could have discussed his views on protecting the boarder without attacking the Governor.


  87. - Pot calling kettle - Wednesday, Feb 27, 19 @ 4:14 pm:

    ==you’re argument is inaccurate for someone off orders==

    OK. So, can any non-retired NG officer or soldier who is “off orders” be a talking head on the cable channels? If so, why does this never happen? The shows are thick with retired officers… None of us are military lawyers, so I’m going with how this works in practice, and Honeybear’s take seems supported by practice.


  88. - btowntruth from forgottonia - Wednesday, Feb 27, 19 @ 4:17 pm:

    Looks like Adam has a mild form of Gaetz Disease.
    Inability to keep temper and mouth from overriding brain.


  89. - RetireMSO - Wednesday, Feb 27, 19 @ 4:57 pm:

    Pot,

    Retired guys have more time on their hands. But look at Michael Waltz. Current congressman, prior contracted talking head on fox. Been in the reserves the whole time. But again your political opinion is driving your legal opinion which doesn’t work. You can argue it’s maybe improper (it’s not) but can’t argue any legalities


  90. - Demoralized - Wednesday, Feb 27, 19 @ 5:07 pm:

    Retire mso:

    Are you a lawyer? Because you seem to be discounting anyone else’s opinion and stating your viewpoint as the absolute truth and fact, when there is, in fact, an alternate argument to be made. But instead of recognizing that you simply yell politics and dismiss the opinions of other out of hand. I’m glad you are so sure of yourself - but it doesn’t make you any more right at this point.


  91. - Demoralized - Wednesday, Feb 27, 19 @ 5:08 pm:

    And I’m not sure how what Pot says is a political opinion. I saw nothing in their last comment that even hinted at politics. You’re claiming the opinions are political simply because you disagree with them.


  92. - Anonymous - Wednesday, Feb 27, 19 @ 5:35 pm:

    @Thomas Paine

    You make rather good points. I am not sure if Art 1 Sec 6 would apply, and would only protect against slander, etc on the floor of the House. I understood that that clause was to protect legislators from harassment for their positions by being arrested or delayed by orders of another branch of government. Something that agents of the Crown often did.

    If we were to prohibited people serving in the Military, especially the Reserve and Guard Forces from holding public office, do we also extend that prohibition to other careers and occupations? That would limited the potential talent in government in my opinion. Even discharging a lottery winner is suspect, especially if that individual still performed their duty as required. That is the same as saying the children of wealthy people should not serve because of the monetary differences.

    As I said before, the Art 32 hearing, if requested by the CoC would be an interesting thing.


  93. - FormerParatrooper - Wednesday, Feb 27, 19 @ 5:37 pm:

    5:35 was me, my apologies.


  94. - Honeybear - Thursday, Feb 28, 19 @ 6:18 am:

    But again your political opinion is driving your legal opinion

    Nope- that’s you cupcake


  95. - truthteller - Thursday, Feb 28, 19 @ 6:49 am:

    any military member who criticizes his/her commander in chief in the public arena should understand they can be court martial and dismissed from duty. I believe the wisconsin Governor is well within his rights to do so.


  96. - Ret ARNG Atty - Thursday, Feb 28, 19 @ 10:15 am:

    Folks, I believe Kinzinger will skate on this one.

    As Rich points out, this type of bill, if applied to “citizen soldiers”, will raise all sorts of First Amendment free speech issues.

    I spent nearly 32 years as an Army officer, about 8 years on active duty, and the rest a mix of Guard and Reserve. As RetireMSO points out, you must be in a duty status to be covered by UCMJ (Federal) or WCMJ (Wisconsin Code of Military Justice), and the duty status is indicated by pay. If you are not being paid, you are not in a duty status.

    As I mentioned earlier, its curious that Kinzinger is only now being investigated by Wisconsin Guard officials only now after he said something that offended the Governor when Kinzinger has been blasting Trump for the last two years.

    I think the reason for this is because these laws don’t apply to citizen soldiers in non-duty status. It’s the same reason they don’t apply to others, such as Rep. Ted Liu of California, who also criticizes Trump when in a non-duty status. And that’s the reason I think any action against Kinzinger will go nowhere.


  97. - wordslinger - Thursday, Feb 28, 19 @ 12:14 pm:

    Kinzinger fulfilled his true mission: he got an attaboy from the White House.

    That should give pause to any pesky potential primary challengers from his right who planned to knock him for previous Trump criticisms.

    https://mail.google.com/mail/u/0/#search/in%3Atrash++the+white+house/FMfcgxwBVqVmBQnFgjSfjdHWkhKjkmxF


Sorry, comments for this post are now closed.


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