Hypothetical Question: Can a CJCS be tried by General Court Martial under the UCMJ absent charges from SECDEF or POTUS?

From the UCMJ:

"822. Art. 22. Who may convene general courtsmartial

(a) General courts-martial may be convened by (1) the President of the United States; (2) the Secretary of Defense; (3) the commanding officer of a unified or specified combatant command; (4) the Secretary concerned; (5) the commanding officer of an Army Group, an Army, an Army Corps, a division, a separate brigade, or a corresponding unit of the Army or Marine Corps; (6) the commander of a fleet; the commanding officer of a naval station or larger shore activity of the Navy beyond the United States; (7) the commanding officer of an air command, an air force, an air division, or a separate wing of the Air Force or Marine Corps; (8) any other commanding officer designated by the Secretary concerned; or (9) any other commanding officer in any of the armed forces when empowered by the President.

(b) If any such commanding officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority if considered desirable by him."

If I'm reading this correctly, any of the listed categories of persons could theoretically bring charges against a CJCS. Although I understood it to be so (and I believe it has generally worked that way), there does not seem to be any requirement that the accused be within the accuser's chain of command (i.e. subordinate to the accuser).

Is there some other regulation or precedent that governs? Is a CJCS General Officer immune from regulation if political appointees above him decline to charge?

I have wondered something similar for a little while. I think you do have to have military authority over the person that you are initiating court martial proceedings against though.

Great question. The short answer is that it's a practical impossibility if the president isn't on board.

There's a difference between the accuser (i.e., the person who prefers charges against the accused) and the convening authority (i.e., the person who refers those charges to a court-martial). Any person subject to the UCMJ may prefer charges, but only a proper convening authority can send those charges to a court-martial for trial. That's normally the immediate commander of the accused, or a superior in the chain of command.

By law, the CJCS is the ranking commissioned officer, and the Rules for Court-Martial prevent a convening authority from being junior in rank to the accused unless superior in command. Since that rules out any other military officer being the convening authority for charges preferred against the incumbent CJCS, you're left with the president and his political appointees as potential convening authorities.

That said, imagine the hassle involved with POTUS or SECDEF acting as a court-martial convening authority. And who would serve as the court-martial members (jury) for a trial of the ranking commissioned officer? As a practical matter, the president would have to fire the CJCS, let him revert to his last permanent rank as a 2-star, and then his parent Service could convene the court-martial.

Even in that scenario, it would be enough of a logistical nightmare to prosecute such a senior officer that the Service would probably be inclined to let the civilian courts take it (assuming it wasn't a uniquely military offense) and then let the Service Secretary handle the follow-on administrative actions (e.g., retirement grade determination, characterization of service upon discharge).

So in essence, the CJCS could commit any offense covered by UCMJ and suffer no consequence--as long as POTUS and/or SECDEF are A-OK with that offense?

I'm sure it was always contemplated that anyone appointed to CJCS would (of course) be a person whose actions are above reproach. Since that appears to not always be true, it sounds like a potentially fatal hole in the system.

Just spit balling here. The CJCS is an appointed position, remove the appointment and then the officer would revert to some other position or even the retired roles and be chief of staff of the Army could bring whatever charges needed to be brought.