Outside the Beltway

Chelsea Manning May Not Be Eligible To Run For Senate

Chelsea Manning is running for Senate, but she may be violating military regulations by doing so.

Doug Mataconis · Thursday, February 1, 2018 · 12 comments

Last month Chelsea Manning, who had her sentence commuted by President Obama near the end of his term last year after serving roughly three years of the sentence imposed on her court-martial for releasing classified information to Wikileaks, announced that she was running for Senate in Maryland in the Democratic primary, challenging incumbent Senator Ben Cardin. As it turns out, though, Manning may not be eligible to run at all:

Questions about Chelsea Manning’s eligibility to run for U.S. Senate in Maryland could imperil her already steep path to the Democratic nomination against two-term Democrat Sen. Ben Cardin.

In 2013, Manning was sentenced to 35 years in prison, and dishonorable discharge from the Army, for passing government secrets to WikiLeaks in violation of the Espionage Act.

While her case is on appeal, she is on a technical form of unpaid active duty, putting her political campaign at odds with Department of Defense regulations that prohibit military personnel from seeking public office.

The Army declined to comment on her campaign, citing the ongoing appeal. But experts said the Army would have little to gain by pursuing action against Manning for her decision to enter politics.

“The military’s interest are not really served by making a big deal about this,” said Eugene R. Fidell, who teaches military justice at Yale Law School and runs a blog that addressed the subject. “In principle, I’m sure the Army would like for the Manning case to recede into the mist of history.”

Manning served about seven years at Fort Leavenworth prison in Kansas after President Obama commuted her military court-imposed sentence in 2017, days before he left office.

She stepped out of prison in May and later returned to Maryland, where her family lives.

Shorty after she launched her Senate bid, conservative media questioned her eligibility to run. A Daily Caller headline read, “Former Military Lawyers: Chelsea Manning Subject To Prosecution For Running For Office.”

Manning, who is running as an anti-establishment alternative to Cardin, shrugged off the apparent conflict.

“If you ask me, this doesn’t sound like a story beyond the conservative blogosphere,” Kelly Wright, a spokeswoman for the Manning campaign, said in a statement.

Earlier this month Manning filed documents with the Federal Election Commission to raise money to challenge Cardin in the June 26 primary, and with the Maryland Board of Elections to have her name placed on the ballot.

The state agency verified that she meets the constitutionally mandated criteria to run for Senate: she’s a U.S. citizen, a Maryland resident and at least 30 years old, said Jared DeMarinis, director of the candidacy and campaign division of the Maryland Board of Elections.

To challenge a candidate’s qualifications to be on the ballot, any registered voter could file a lawsuit, but as of Wednesday no such action had been taken against Manning, he said.

To be honest, it had not occurred to me that Manning was technically still considered to be an active duty member of the military, albeit one who is in a status where she isn’t performing any official duties and is not being paid. However, given the fact that President Obama merely commuted Manning’s sentence rather than pardoning her, this means that the conviction remains on her record and will follow her for the rest of her life. Because of this Manning continues to pursue her appeals of the conviction and must remain on active duty status until the case is finally resolved via that process. This also means that Manning at least technically remains subject to the Uniform Code of Military Justice and other rules and regulations governing active duty members of the military, including the regulations against political activity while on active duty.

I didn’t even bother to write a post about Manning’s candidacy when she announced last month, largely because I didn’t consider it to be a matter of much consequence outside of Maryland, and because Manning would clearly be unlikely to even come close to posing a successful or even noteworthy challenge to Cardin, who has been serving in the Senate since being elected in 2006 to replace long-time Senator Paul Sarbanes. In his first bid for reelection in 2012, Cardin won the Democratic primary with more than 74% of the vote, and he won the General Election by nearly 800,000 votes over his Republican opponent. There’s no reason to believe that his performance in the primary this time won’t be roughly the same and even less reason to believe that Manning would be a particularly effective challenger assuming that Maryland Democrats are at all interested in finding an alternative to Cardin, and there’s no reason to believe that. Cardin will win the primary easily and will go on to win a third term in November, and Manning will largely be a non-factor in the race. Indeed, the only reason that she’s likely to get any media attention at all is due to her criminal conviction, which is hardly the kind of media coverage someone challenging a sitting Senator needs if they’re going to succeed.

As for the question of whether or not Manning can run for Senate, I’m not a sufficient expert in the UCMJ and the other rules and regulations that govern the issue of what kind of political activities that active duty members of the armed services are permitted to engage in to speak to that. It may just be the case that by running Manning is violating the regulation and could theoretically be charged for that violation in a military court. That doesn’t necessarily mean, though, that she would be ineligible to run for office. As it stands, the only requirements that someone must meet to be a candidate in Maryland are that they meet the Constitutional requirements for a Senator set forth in Article I, Section 3, Clause 3 (being a U.S. citizen, a resident of the state in which the candidate is running, and at least 30 years of age) of the Constitution and the ballot access requirements set forth in Maryland law. As noted above, there’s no question that Manning meets the Constitutional requirements and it appears that she has met the requirements to be placed on the ballot. Given that, it’s unclear that any lawsuit that could be filed against Manning would succeed. One of the primary reasons for that can be seen in the Supreme Court’s 1969 ruling in Powell v. McCormack which held that the only bars to eligibility to serve in Congress are the ones set forth in the Constitution. In theory, this would seem to mean that Manning would be eligible to run and to serve in the unlikely event that she won, even while violating a military law in doing so.

Whatever the case may be, though, Manning is unlikely to have much of an impact on the race in Maryland beyond news items of interest such as this.