LTC Vindman Could be Court-Martialed for Testifying to Congress

Defying the Commander-in-Chief's order will almost certainly ruin a good man's career.

Army Lieutenant Colonel Alexander Vindman came to sudden prominence this week when he testified to Congress about President Trump’s improper phone call to his Ukrainian counterpart. He is, to say the least, unlikely to be rewarded for this act of patriotic duty.

Meghann Myers reporting for Military Times [which, in this instance, I must emphasize is a privately-held arm of the Gannett company, not an official government publication]:

When Lt. Col. Alexander Vindman appeared before members of Congress on Tuesday to discuss what he knew about President Trump’s conversations with Ukraine’s president, he was violating an order from his commander in chief not to cooperate with the House’s impeachment inquiry.

He is likely protected from legal ramifications from showing up to testify, a former Army judge advocate told Military Times on Thursday. But it remains to be seen whether what he told legislators could get him charged with a crime ― and, of course, how his choice to rebel against his White House chain-of-command will affect his career.

“It’s not far-fetched,” Sean Timmons, a managing partner at Tully Rinckey, said. “It’s a murky issue.”

It comes down to whether Trump’s order was lawful, he said. If Trump was trying to prevent Vindman from sharing sensitive information, it could be. If he was trying to prevent testimony, period, it’s not.

The Military Whistleblower Protection Act prohibits government officials from interfering with a member of the military in communicating with Congress or an inspector general. Adding to the complexity is that the president gets to determine what is and isn’t classified.

“If the president were to order the lieutenant colonel not to testify, that would not be a lawful order,” Timmons said. “However, it gets tricky, because you have to obey orders unless it is manifestly unlawful. It’s not clear if such an order would be manifestly unlawful if the president is using his executive authority to prohibit the communication of information that the executive branch determines to be classified, sensitive, top secret, not to be disclosed to anyone without prior authorization.”

In any case, Vindman’s testimony would need to be limited to avoid disclosing anything out of order, Timmons said.

While the notion of charging an officer for complying with a Congressional subpoena would have seemed far-fetched in different times, so would the smearing of a combat-wounded veteran as an enemy agent by the Republican Party and their backers at Fox News. It’s a new reality.

More likely, though, Vindman will simply see a promising career—one doesn’t get selected for the NSC staff as a terminal assignment—come to a premature end. Not officially, of course:

“Lt. Col. Vindman, who has served this country honorably for 20-plus years, is fully supported by the Army like every soldier, having earned a Purple Heart after being wounded in Iraq in 2004,” Army spokesman Matt Leonard told Military Times on Thursday. “As his career assignments reflect, Lt. Col. Vindman has a long history of selfless service to his country, including combat. Lt. Col. Vindman is afforded all protections anyone would be provided in his circumstances.”

A spokesman for the National Security Council, Vindman’s official command, declined to comment on whether he might face an Article 15 investigation.

But the reality is likely quite different:

Beyond any possible legal fallout, Timmons added, it’s more likely that Vindman has torpedoed his career by testifying before Congress.
“…the reality is, whistleblowers often face retaliation through subterfuge,” he said.

Because it’s unlikely Vindman will remain a member of the NSC staff, his service record will have a big gash in it from being moved mid-assignment, Timmons said.

His rater, who signs off on his officer evaluation report, is also likely a senior civilian official, who could give him a less-than-stellar review that might affect his competitiveness for promotion to full colonel. And then, of course, if he’s not promoted, he’ll eventually be forced to retire.

He was reportedly commissioned in January 1999. Unless he gets promoted to full colonel, he’ll be forced into retirement at the 27-year mark, probably January 2026. But, if he’s passed over twice, he may well simply retire.

Then again, January 2026 is a long time from now. Donald Trump won’t be Commander-in-Chief at that point, even if he serves two full terms. There’s certainly a possibility of rehabilitation.

UPDATE (3 November): See my follow-up, “LTC Vindman Update.”

FILED UNDER: Donald Trump, Law and the Courts, Military Affairs, U.S. Constitution
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Aren’t there exceptions in the UCMJ dealing with situations where one is reporting official wrongdoing or failing to comply with an illegal order?

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  2. James Joyner says:

    @Doug Mataconis: Yes. But the burden of proof is on him to demonstrate that the order is illegal. The presumption is that the Commander-in-Chief has the authority to make policy. And, in this case, the contents of the call were arguably classified. (Although I’d think the White House’s release of the summary would negate that argument but IANAL.)

    Interestingly, Vindman’s twin brother is also an Army LTC on the NSC staff. He’s a JAG.

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  3. JohnMcC says:

    All this must have been in the mind of Col Vindman as he prepared his testimony. I certainly jumped to conclusion that he was giving up his career. Which definitely increased my estimation of his character.

    Would be interesting to see similar evaluation of the State Dep’t career employees future after similar testimony.

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  4. Scott says:

    LTC Vindman is collateral damage. There will be no one to protect him. He probably knows this. The flag pin patriots on the right will vilify him. And unlike real disgraces like Ollie North and Allen West, he won’t be able to cash in on the grifter circuit.

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  5. Sleeping Dog says:

    No, he won’t benefit from wing nut welfare, but I expect that there will be a cushy gig at think tank.

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  6. DeD says:

    @Sleeping Dog:

    I expect that there will be a cushy gig at think tank.

    I don’t consider research and analysis conducted with sustained mental labor “cushy.” Thinking on that level is taxing. That’s why we have a *President Trump, because no one wants to think, anymore. Okay, let the flaming begin.

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  7. KM says:

    @James Joyner :

    Yes. But the burden of proof is on him to demonstrate that the order is illegal. The presumption is that the Commander-in-Chief has the authority to make policy.

    Perhaps but policy can’t be in violation of existing law. The CiC’s policy can’t be “it’s OK to shoot unarmed civilians in the back” because that’s a war crime and violation of several treaties. Altering official documents is a process governed by laws and those laws were being clearly circumvented if not outright broken. Altering a transcript to take out classified material is one thing but when said materials is obviously criminal in nature and “classified” after the fact to protect it, you’ve got a good case for acting in good faith and following his stated duty. Vindman acted in a law-abiding manner by following all protocols set for this sort of situation, protocols and policy theoretically approved of his CiC at the time.

    As for the presumption the order was legal, Trump’s being impeached over that very order. Doesn’t that give legal cover and disabuse the notion that this particular order was kosher?

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  8. mattbernius says:

    @DeD:

    That’s why we have a *President Trump, because no one wants to think, anymore.

    No it’s pretty clear that there are a lot of people who want to think. The reason we have Trump is largely because a significant portion of the Republican base, in particular the few who continue to post here, have come to fundamentally distrust “experts.”

    Just ask any of them for thoughts on the topic (or just search the archives).

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  9. Teve says:

    46% of voters acting dumb AF doesn’t indict the rest of us.

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  10. JKB says:

    Obviously, he’s out of the White House. Proved to be a staffer willing to undermine his principal. Perhaps some other senior officer will trust him on his staff.

    In any case, Vindman apparently is known as an officer who speaks inappropriately about the US, even to Russian military members. This is going to be in the minds of any future promotion board members.

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  11. DrDaveT says:

    @JKB:

    Vindman apparently is known as an officer who speaks inappropriately about the US

    You are stunningly predictable regarding which random sole-source opinions you choose to believe without further evidence. Just out of curiosity, when was the last time you concluded that you had been fundamentally wrong about something?

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  12. just nutha says:

    @DeD: No flaming from this quarter.

    And thanks for watching. This has been Episode 4728 of Certainly it’s a Sin to Do Good on the Sabbath [why would you even ask?]. Please come back again at the same time for the next episode.

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  13. Kathy says:

    Contrary to his cherished belief, Trump does not have the power to decide what’s legal and what’s not.

    Fortunately he’s too lazy and incompetent to do much about it.

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  14. Nickel Front says:

    so would the smearing of a combat-wounded veteran as an enemy agent by the Republican Party and their backers at Fox News. It’s a new reality.

    Speaking of smearing veterans, what’s up with Tulsi Gabbard? Is she still a Russian agent?

    That accusation seems to be “a new reality” as well.

    IDK if testifying should end his career. I’m more thinking that his attempts to modify a transcript of a call should do that.

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  15. Gustopher says:

    It comes down to whether Trump’s order was lawful, he said. If Trump was trying to prevent Vindman from sharing sensitive information, it could be. If he was trying to prevent testimony, period, it’s not.

    Didn’t the Trump Administration release an 8 page screed saying they would never let anyone testify about anything to the partisan witch hunt?

    I think that would give Vindman cover on a purely legal ground for not following a manifestly illegal order.

    @James Joyner:

    Interestingly, Vindman’s twin brother is also an Army LTC on the NSC staff. He’s a JAG.

    Coincidences like that always make me think… What would Lucy Ricardo do?

    The only question is whether hijinks are about to ensue, or whether hijinks have already ensued. Has anyone ever seen them together? Are we sure it wasn’t done with mirrors? Was it really his brother who testified in front of congress? Will they share one job going forward?

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  16. Kathy says:

    The military is becoming, or has become, the GOP’s battered spouse.

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  17. Boyd says:

    Don Sensing has an interesting take.

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  18. DrDaveT says:

    @Nickel Front:

    That accusation seems to be “a new reality” as well.

    No, it’s an old typo. Really. As Yogi said, “You could look it up.”

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  19. mattbernius says:

    @JKB:

    In any case, Vindman apparently is known as an officer who speaks inappropriately about the US, even to Russian military members.

    Huh, citing a guy (https://twitter.com/Jim_Hickman13) who thinks that Michael Flynn (who plead guilty to charges) was unfairly treated. Let’s check his pinned tweet:

    A message to all the liberal, race-baiting, hateful Dems & their #FakeNewsMedia propagandists, @realDonaldTrump is NOT a racist, or white supremacist, & neither are his supporters. We love, & want the best for every American, just like these beautiful children below. #Patriotic

    https://twitter.com/Jim_Hickman13/status/1164020657010741249

    Totally unbiased source for analysis there JKB — well done!

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  20. mattbernius says:

    @Boyd:

    Don Sensing has an interesting take.

    Ok, so let’s check Don Sensing’s “sites of interest”…

    CLIMATE DEBATE DAILY
    American Thinker
    Real Climate Science
    Dissecting Leftism
    Doug Ross Journal
    Real Climate Science
    Scott Adams Says

    Huh, again, I wonder if Mr Sensing (who sure follows a lot of hard right and climate denial sites) might have a particular frame of reference that could be coloring his argument….

    Hmm, nah, let’s just read down the page to his next post…

    Instead, we have self-described socialists and wings of the Democrat party that are even further Left than they. And yes, socialism, including so-called “democratic” socialism, is and evil ideology.

    Hey an entire post about how the Democratic party is using the framework of the Nazi party (Gleichschaltung) for gaining power… Cool, cool. Definitely no crazy bias in his analysis.

    BTW, I just grabbed the greatest hits of that list (though kudos for Sensing to at least including Lawfare in his list…

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  21. just nutha says:

    @Nickel Front: I see you haven’t caught up to the misquote and incorrect substitution of “Russian” for “Republican.” A more cynical person would write you off as a simple liar, but I prefer to give allowance for you simply being ignint and careless.

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  22. just nutha says:

    @mattbernius: Couldn’t view the link (blocked on the network the school I was at today uses, but OTB is not, interestingly enough) but thought it ironic that the blog is called “Sense of Events.” Hmmmmm…

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  23. mattbernius says:

    @JKB:
    BTW, I also note that you are mounting the attack of character route (versus your usual process attack).

    This again seems a bit of a dodge in the respect that what we know of Vindman just confirming facts that were already shared: the contents of the call and the decision to classify the call.

    I am very curious why you and all other Trump supporters seem to avoid this aspect (aka the facts) of the story.

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  24. OzarkHillbilly says:

    @mattbernius:

    I am very curious why you and all other Trump supporters seem to avoid this aspect

    Because he’s a gutless weasel without a leg to stand on. SATSQ.

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  25. de stijl says:

    @mattbernius:
    @OzarkHillbilly:

    The easy way out of cognitive dissonance is to attack that which is causing it.

    Reflection is difficult. And when one is “all-in” nowadays, revaluation is seen as capitulation rather than growth or empathy or wisdom.

    Tribalism before judgement.

    Labeling Vindman a deep state traitor makes all the bothersome facts disappear. Bothersome facts cause psychological distress and is unpleasant, therefore the cause – Vindman – must be discredited and diminished and dismissed.

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  26. MGB says:

    @mattbernius: General Flynn was treated unfairly! When first questioned by the FBI,
    He was told he didn’t need a lawyer.
    He was not read his Miranda rights when arrested.
    He spent over a million dollars defending himself, until he was nearly bankrupt, selling his house to stave off creditors. Then when told they were going after his son, if he didn’t cooperate, he finally gave in and plead guilty to lying to the FBI. When in truth it was just something he didn’t remember correctly. More recently the FBI has been caught doctoring the 302 form, from their interview with him. Yes, General Flynn has been treated unfairly!

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  27. mattbernius says:

    @MGB:
    Those are very serious claims. Could you provide some links to news sources that detail them so I can read more about them?

    I will say that from what I have read, General Flynn experienced something that is pretty much in keeping with average police and prosecution tactics. If you find this appalling you should learn more about criminal justice reform movements.

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  28. de stijl says:

    @mattbernius:
    @MGB:

    The ACLU would happily accept your donation, MGB, given your principled and in no way tribal, advocacy for the rights of the accused.

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  29. Nickel Front says:

    @mattbernius: you’re criticizing Sensing as some kind of a nut for saying Democrats use Nazi techniques… On a site that continually says Trump is literally a dictator and is essentially Hitler reincarnated.

    Sure, Jan.

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  30. de stijl says:

    @Nickel Front:

    Bye, Felicia.

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  31. mattbernius says:

    @Nickel Front:

    On a site that continually says Trump is literally a dictator and is essentially Hitler reincarnated.

    Wow. That’s a serious accusation. Perhaps you can point me at an example of where this blog’s lead authors — James, Steven, and Doug — have written that? I mean I was talking about the author of another blog, so that would be the aligned case if you’re making a fair comparison.

    Oh, and btw, a few days ago you shared the bombshell news that there is proof that Obama colluded with the Russians against Trump. I wanted to learn more and asked you for a link so I could do some research. You seemed to have missed that because you replied on that thread afterwards but never provided that link.

    And chance you’d be willing to share. I’d hate to think you’re making baseless accusations or don’t have the confidence to back up your claims for some reason.

    Hope you’re doing well.

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  32. Nickel Front says:

    @just nutha: what misquote?
    I suppose there’s some question of what Hillary said, but the LA times, among others, is pushing just that: “Tulsi Gabbard may not be a Russian asset. But she sure talks like one”
    Even points out how she chose Putin over Obama.
    And she is Putin’s favorite obviously, with all his bots working overtime for her.

    Besides, with Putin’s Puppet in the WH, and of course Moscow Mitch, isn’t being accused of being a republican the same thing as being accused of being a Russian?

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  33. Michael Reynolds says:

    @MGB and @Nickel Front need intellectual Viagra. They keep trying to convince us they’ve got a good stiff one, but when challenged they always go limp.

    ReplyReply
  34. Michael Cain says:

    I know that the President can classify or unclassify information pretty much at will, and that the relationship between Congress and classified information is tricky. IIRC, Congress critters swear a secrecy oath but don’t get security clearances per se. OTOH, both houses maintain SCIFs. I’m curious about the legal theory by which the President could declare that certain information can’t be shared with Congress and how it would apply in this case.

    (My time in government(s) has always been on the legislative side, and I admit a bias towards preserving legislative prerogatives.)

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  35. de stijl says:

    Jill Stein 2.0

    A useful idiot.

    ReplyReply
  36. John says:

    @DrDaveT:
    Hey dumbass, might want to check this Twitter thread – this information has been corroborated from multiple sources. The guy is a partisan hack.

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  37. @John:

    Since you are apparently a first-time commenter I’ll let it slide this time but our comment policies generally don’t permit personal attacks on fellow commenters.

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  38. Harry McD says:

    Being familiar with promotion zones and that he has served nearly 20 years already, I think the LtCol has previously been passed over once for promotion. Perhaps he feels he has nothing to lose by venting or he feels like he is getting even with the system.

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  39. Jax says:

    @Harry McD: Or maybe he just feels like the president broke the law.

    ReplyReply

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