Earlier, Jazz wondered whether Cal Cunningham could tip the balance of the Senate to Democrats. WRAL now reports that the Army Reserve might end up tipping a balance or two as well. Cunningham serves as an officer in the reserve, and any extramarital shenanigans falls into military jurisdiction — and could result in a potential court-martial:
Wednesday morning, the Army Reserve confirmed to WRAL that it has opened an investigation into Cunningham.
“The Army Reserve is investigating the matters involving Lt. Col. James Cunningham. As such, we are unable to provide further details at this time,” said Simon B. Flake, chief of media relations and public information for the Army Reserve Strategic Communications.
It’s unclear why the Army Reserve launched an investigation. NationalFile.com reported last week that Guzman Todd is married to a service member.
That’s not the only bad news coming from the military, either. The husband of Arlene Guzman Todd wants Cunningham out of the race, citing his betrayal of a “fellow junior officer and veteran.” Jeremy Todd wants the Army Reserve investigation as well, although Todd also says some of the third-party texts that have subsequently been published are not genuine. “I’ve seen the real ones,” he told the News & Observer:
Jeremy Todd is an Army veteran who served 19-plus years and severely injured his spine during a paratrooper proficiency jump several years ago. His wife, Arlene Guzman Todd, has confirmed she had an intimate relationship with Cunningham after the candidate’s campaign confirmed the authenticity of suggestive text messages between the two.
“Mr. Cunningham chose to repeatedly engage in activities that would hurt his family and a fellow junior officer and veteran,” Jeremy Todd said in a statement Wednesday to The News & Observer.
“If elected, I can only imagine how misplaced his judgment would be for the people he’s charged to represent,” Todd said. “I firmly believe Mr. Cunningham should drop out of the Senate race and ask that his behavior and actions be reviewed under the Uniform Code of Military Justice.”
That’s gonna sting, especially combined with the Army’s announcement. It’s not at all “unclear” why the military opened this investigation or why Todd is demanding it, either. As a member of the Army Reserve, he has to obey the Uniform Code of Military Justice. Adultery is explicitly forbidden to all military members in Article 134 and can result in detention and a dishonorable discharge. To build a case, the Army Reserve has to establish three elements:
The maximum punishment according to Article 134 (Adultery) is a Dishonorable Discharge, forfeiture of all pay and allowances, and confinement for one year.
The crime of adultery under the UCMJ consists of three elements. All three of these elements must be proved by the government beyond a reasonable doubt in order to charge a service member with adultery and include:
- That the accused wrongfully had sexual intercourse with a certain person;
- That, at the time, the accused or the other person was married to someone else; and
- That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
The texts and other public testimony appear to establish the first two elements. The third might be trickier, especially if this occurred at times while Cunningham was not performing Reserve duty. Generally speaking, the military would be loathe to intrude on civilian life unless absolutely necessary. If this took place while Cunningham was out of uniform, they might well ignore it — except that Cunningham was running in part by publicizing his Reserve status, crossing over that line. There’s nothing wrong with a reservist making his service known in a political campaign, but by doing so, Cunningham’s sexual peccadilloes might be thought to “bring discredit” on his Reserve status.
However, it’s also not a charge brought often on its own, as another law firm specializing in military representation notes:
The Manual for Courts-Martial explains that, “the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting.” Military prosecutors typically charge adultery as an add-on charge to some other offense such as rape or sexual assault. Adultery is not normally brought to a court-martial if that is the only misconduct alleged. Some experts view adultery as an outdated offense.
Indeed, and that’s why this is likely to end at the investigative stage. The Army Reserve needs to establish whether any action is warranted against Cunningham for his epic bad judgment in running for the Senate while juggling two mistresses and an Army Reserve obligation, but they’re probably hoping that the dates don’t match up to his active-duty service. If it does, however, it’s likely to be yet even more backfire for a man who clearly has risk-management and self-destruction issues.
Even without a court-martial, though, Todd’s remarks will stick with voters, especially coming from an injured combat veteran who thought Cunningham was his friend.