Is There A Conflict? I Say No

Can a United States Senator work for both the Executive Branch AND the Legislative Branch at the same time? This is an issue being raised in a United States Court of Appeals. Senator Lindsey Graham (R – SC) is also known to the Airforce Reserve as Col. Lindsey Graham, an Airforce Criminal Court of Appeals Judge.

At issue is a case in which Senator Graham was tasked in his Airforce Reserve role to review an appeal by an Airman who was convicted of violation of Article 112a. of the Uniform Code of Military Justice.

912a. ART. 112a. WRONGFUL USE, POSSESSION, ETC., OF CONTROLLED SUBSTANCES

(a) Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports form the United States, or introduces into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces a substance described in subsection (b) shall be punished as a court-martial may direct.

(b) The substances refereed to in subsection (a) are the following:

(1) opium, heroin, cocaine, amphetamine, lysergic acid diethylamide, methamphetamine, phencyclidine, barbituric acid, and marijuana, and any compound or derivative of any such substance.

(2) Any substance not specified in clause (1) that is listed on a schedule of controlled substances prescribed by the President for the purposes of this article.

(3) Any other substance not specified in clause (1) or contained on a list prescribed by the President under clause (2) that is listed in Schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

The ACLU filed an amicus brief on behalf of Airman 1st Class Charles Lane stating, “Senator/Judge Graham cannot be an impartial and disinterested judge” because he is “politically accountable to his constituents for anything he does.”
Let’s call this what it is, a drug addict Airman who violated the law under-which he agreed by contract to live. Nobody forced him to join the Airforce. And by his voluntary enlistment, Airman Lane agreed to live under the articles of the Uniform Code of Military Justice. He didn’t; and was found guilt of his crime by a General Court Martial.

Senator Graham is no different than any other Reservist except that he cannot accept payment from the military for his service because he is a member of Congress. He has responsibilities to the Airforce Reserve which have nothing to do with his regular vocation as a United States Senator.

BUT, being that he is a member of the Senate, he is instrumental in amending the Uniform Code of Military Justice by act of Congress. His unique insight into the life of a citizen soldier may affect his vote on whether to adopt a change to the UCMJ, but I don’t think that works in reverse.

As a member of the Judiciary Committee, Senator Graham is fully aware of the need for an independent judiciary. However, this isn’t civilian law. Members of the military are answerable to only one authority, the Commander-In-Chief of the United States. A fact which places Senator Graham in the position of not being a member of Congress, but an Officer in the United States Airforce Reserve with a duty to review cases assigned him for reversible error based on the law.

Col. Graham, USAFR, reviewed Airman Lane’s conviction as one of three Airforce Officers and found no cause to reverse the decision of the Court Martial. Col. Graham’s responsibility under the UCMJ is to ensure that the rights of the accused and the interests of the people of the United States are equally protected. He did that.

His duty to the Airforce Reserve and his duty to the American people are two separate duties. No different than the Machinist who does his 1 weekend a month and 2 weeks in the summer. Does the Machinist do his Reserve job according to how it would impact his civilian boss? No. Neither does Senator Graham.

The Senator owes the people of South Carolina and the United States as a whole, to make laws based on the Constitution of the United States in the best interests of the people. His duty to the Airforce Reserve is to apply the laws of the United States and the UCMJ to military personnel who may or may not be in violation of those laws. Two separate duties and two different responsibilities.

I see no conflict and no reason for Col. Graham to recuse himself. And I am proud of Senator Graham for escaping the bubble of the beltway and staying grounded by serving his nation in a more meaningful way.