Ignorance Is Bliss, Until It Isn't: Vetting TJAG Candidates

When Defense Secretary Pete Hegseth fired the senior Army and Air Force uniformed lawyers (referred to as TJAG) and implemented a selection process for their replacements that differed from the traditional selection board method, former senior military lawyers cried foul.

Secretary Hegseth justified the firings by asserting that the fired TJAGs were not “well suited” for their job. To find new TJAGs that are well suited, Hegseth announced a new selection process that involves the civilian leadership in the process to a greater extent than before.

The new process instituted by Secretary Hegseth still uses a selection board but requires the board to forward the top three best qualified candidates to the secretarial level for consideration. Interviews with the senior civilian leadership follows with the final selection being made by the Secretary of Defense. That name will then be forwarded to the White House for nomination and then to the Senate for confirmation.

In his criticism of the new selection process, Adm. McPherson feared that involving the politically-appointed civilian leadership in the selection process risked politicizing what should otherwise be an apolitical role committed to providing independent legal advice to the senior leadership of their respective services.

Specifically, Adm. McPherson objected to asking candidates whether they agreed “with a policy regarding the mandatory inoculation for COVID and how that policy was executed” and “do you agree with the former policy regarding eligibility for transgender people to enter and remain in the service and how that policy was executed.”

Adm. McPherson characterized these as “two highly political questions” involving personnel policies “which the TJAG would have never been involved in.” Accordingly, Adm. McPherson argued, the questions were “totally inappropriate.”

Set aside the issue of whether the modified selection process is consistent with the statute governing officer promotion boards, generally. The difference between the traditional approach and the new approach is the direction to the selection board to provide three names instead of only one. The statutory creation of the office of The Judge Advocate General (10 USC § 7037 [Army], 10 USC § 5148 [Navy], 10 USC § 8037 [Air Force]) gives the secretaries of the military departments and the Secretary of Defense considerable discretion in how to make the final pick that goes to the President for his approval and transmittal to the Senate for confirmation.

What is stunning about Adm. McPherson’s statement is that the TJAGs were not involved in the COVID and transgender policies implemented during the Biden administration. Huh?!

While controversial and politically charged, both the COVID and the transgender policies apply directly to members of the uniformed services. Being “involved” with these types of military personnel issues has historically been clearly within the role of the TJAGs.

Not only do the COVID and transgender policies deal with matters clearly within the ambit of the TJAG, but they also involve legal issues that can have far-reaching impact on the lives of individual service members as well as force morale, readiness, and unit cohesion.

Whether the COVID vaccine mandate complied with 10 USC § 1107a for the use of vaccines under an emergency use authorization and whether exemption requests based on the Religious Freedom Restoration Act were processed appropriately are quintessential legal questions that TJAGs and their staff of Judge Advocates routinely deal with. The fact that they were also politically controversial is another reason to seek the independent legal advice of the TJAGs.

In my own experience as Chief, Army Litigation Division, I regularly advised the TJAG and the Army staff on similar personnel policies. The issues ranged from whether the underlying policy complied with constitutional and statutory requirements, whether the implementation plan appropriately considered constitutional, statutory, and regulatory principles, whether litigation was likely, and if litigation ensued the scope of judicial review and likelihood of success. If there were aspects of the proposed policy that created problems in any of those areas, I provided advice on how to change the proposed policy to bring it into compliance with the law and strengthen the ability to defend it in court.

These sorts of issues were addressed in both written memoranda and in personal meetings with the senior Army staff. The Army TJAG routinely briefed the Chief of Staff and the Secretary of the Army on such issues, coordinated with the Army and DoD General Counsel, and with the appropriate officials at the Department of Justice. In short, the TJAG and subordinate Judge Advocates provided independent legal advice on how to accomplish the Army’s policy goals and comply with existing law. If the TJAGs stayed out of military personnel policy issues that had “political” implications, they would have a lot of free time on their hands.

I find it shocking that, apparently, in Adm. McPherson’s extensive experience as the Navy TJAG he was not involved in providing legal advice to the Chief of Naval Operations and the Secretary of the Navy on important personnel policies that were fraught with both political and legal issues. Surely, he learned in an earlier assignment as the Assistant for Legal and Legislative Matters on the staff of the Vice Chief of Naval Operations that political and legal considerations are often intertwined and that lawyers must deal with both. The lawyer’s ability to distinguish the legal issues from the political ones and craft policies that satisfy both legal considerations and political concerns is part and parcel of being an attorney and counsellor at law.

I am just as stunned that as the Army General Counsel, the Under Secretary of the Army, and the Acting Secretary of the Navy Adm. McPherson, apparently, never involved the Army or Navy TJAGs in developing and reviewing military personnel policy proposals that were controversial and involved political as well as legal considerations. If Adm. McPherson is correct that TJAGs “would have never been involved in” the COVID and transgender policy formulation and implementation it may explain why, at least in the case of the COVID mandate, it was found to violate the law and was repealed at the direction of Congress. Had the TJAGs been asked for their independent legal advice perhaps the policy would have been different. If they were asked and failed to identify the legal problems that spawned extensive litigation it is further justification for asking current TJAG candidates their views on the issues. It also reveals that for whatever reason the senior military leadership, both uniformed and civilian, shut the TJAGs out of critical policy decisions and did not seek the independent legal advice the TJAGs are duty-bound to provide. Ignorance is never bliss and usually results in unpleasant consequences.

Maybe ADM McPherson was misquoted in the article, or the author misunderstood his point. Or maybe I’ve misunderstood his point. In any case, the service TJAGs and their subordinate Judge Advocates are regularly, routinely, and appropriately involved in advising during the personnel policy development process, the implementation of the approved policy, and in defending the policy should it be challenged in court.

Adm. McPherson labeled the questions about the COVID and transgender policies as “inappropriate.” But TJAGs are not Supreme Court Justices who may be called upon to decide a future case and should not pre-judge the outcome. They are the attorneys and counsellors at law statutorily required to provide independent legal advice to the senior civilian and military leadership. They are also experienced military lawyers who have dealt with the broad range of legal issues that regularly cross a Judge Advocate’s desk. Asking their views on widely publicized, controversial, and litigated personnel policies gives insight into how they approach their obligation of providing independent legal advice to the service chief and the service secretary.

Instead of indicating that the changes in the TJAG selection process evidence as intent to “politicize” the role of the TJAG, these changes may encourage the selection of TJAGs who are better qualified and more capable of providing the important advice and guidance the senior uniformed and civilian leadership so desperately needs. As a result, the recipients of their advice and counsel may have greater confidence in them. Any organization or individual seeking to retain the services of a lawyer might like to know how the lawyer thinks about issues and problems that are likely to come their way. Chiefs of Staff and Service Secretaries are no different.

William A. Woodruff is professor of law emeritus at Campbell University School of Law, where he taught for over twenty-five years. Woodruff also served on active duty in the Army for twenty-two years. His last Army assignment was Chief, Litigation Division, Office of the Judge Advocate General, where he was responsible for defending civil litigation challenging Army policies, programs, and operations.