Table Content
Article 88 of the Uniform Code of Military Justice establishes a specific offense applied only to commissioned officers who use contemptuous words against certain senior civilian officials. The provision protects the integrity of civilian authority over the military by prohibiting public expressions of contempt directed at key government figures. The offense is applied narrowly and requires both the status of the speaker and the status of the target to meet statutory criteria.
Article 88 prohibits the use of contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security (when administering the Coast Guard), or the governor or legislature of any U.S. state, territory, or possession. The statute applies to spoken, written, or symbolic expression when it meets the standard of contempt. Private communications may fall outside the scope if they are not intended for or likely to reach a public audience, but this depends on context.
The offense applies exclusively to commissioned officers of the armed forces. Warrant officers, enlisted members, and civilians are not chargeable under Article 88, although their conduct may be addressed under other articles if applicable. Retired commissioned officers receiving pay may be subject to the article depending on jurisdictional considerations.
Article 88 generally requires that the accused intentionally use the words in question and that the words are in fact contemptuous. The government need not prove an intent to undermine authority, only that the statements were made knowingly and were contemptuous in character. Negligent or accidental utterances do not satisfy the standard.
Attempt and conspiracy charges under Articles 80 and 81 are theoretically possible but uncommon because the offense itself consists of the completed act of expression. Accomplice liability under Article 77 may apply if an officer intentionally assists another officer in making contemptuous statements. These ancillary theories are used rarely and typically only in aggravated circumstances.
The government must establish each element of this offense beyond a reasonable doubt before an accused may be found guilty of contempt toward officials under Article 88, UCMJ.
The mens rea for Article 88 generally requires that the accused intentionally used the words in question and was aware of the official status of the individual addressed. A motive to show contempt is not required, but the communication must be deliberate rather than accidental or inadvertent.
The actus reus consists of the use of words that are contemptuous on their face or in context. The communication may occur orally, in writing, or through any medium that conveys the contemptuous expression to another person.
“Contemptuous” refers to language that brings the official into disrespect or ridicule. The status of the protected officials is defined by statute and includes both federal and certain state-level executive and legislative officers.
Punishment under the Uniform Code of Military Justice (UCMJ) depends on the date of the alleged offense. Offenses committed before December 27, 2023 are sentenced under the traditional “maximum punishment” model, while offenses committed on or after that date are sentenced under the updated sentencing_category system implemented pursuant to recent statutory and Manual for Courts_Martial revisions.
Under the pre_December 27, 2023 sentencing framework, Article 88 (Contempt Toward Officials) carried the following maximum authorized punishment:
This model provided a single ceiling for punishment, and the military judge or members determined an appropriate sentence up to, but not exceeding, the maximums listed in the Manual for Courts_Martial.
For offenses committed on or after December 27, 2023, Article 88 is assigned to Sentencing Category 2. This categorization establishes structured confinement ranges and other sentencing parameters.
The sentencing_category system differs from the prior model by providing standardized confinement ranges rather than a single maximum ceiling. Each offense is assigned to a category with a defined range, and adjudged confinement must fall within that range unless specific statutory exceptions apply. This structure increases uniformity across cases by aligning offenses of similar seriousness within the same confinement brackets, while still permitting the adjudging authority to determine an appropriate sentence within the prescribed limits.
Charging decisions under Article 88 are shaped by the specific fact patterns of the alleged misconduct, the route by which information reaches command authorities, and the discretion exercised by commanders and legal advisors. While the offense is narrowly tailored and applies only to commissioned officers, the manner in which cases develop follows recurring practical patterns within the military justice system.
Allegations typically arise from public-facing or widely disseminated statements attributed to a commissioned officer. Common situations include remarks made on social media platforms, statements delivered during speeches or unit events, or comments shared via email groups or professional forums. Command attention is usually triggered when the statements appear contemptuous toward senior U.S. officials identifiable by office. Cases most frequently originate when the remarks are openly accessible, made under the officer’s name, or circulated broadly enough to attract reporting from subordinates or peers. Although Article 88 is rarely charged in isolation, when it is invoked, the allegations generally involve deliberate communications rather than spontaneous or private conversation.
Cases commonly begin with a complaint from within the unit, a report from a subordinate, or command awareness of a public post or statement. Initial command-directed inquiries are frequent, including informal commander’s inquiries or preliminary fact-finding by appointed officers. When the allegations intersect with broader misconduct—such as misuse of government information systems—military law-enforcement agencies such as CID, NCIS, OSI, or CGIS may be tasked to collect digital evidence or interview witnesses. Legal advisors typically review early findings to determine whether the facts support further investigation under Article 88 or another article.
Prosecutors often employ overlapping statutes to ensure that all aspects of the conduct are captured, especially where the alleged contemptuous statement also implicates professional standards or regulatory violations. Charge-stacking is uncommon but not absent; more frequently, alternative charges are listed to address different legal theories arising from the same statement. Article 88 commonly functions as one element of a broader charge sheet rather than a standalone offense.
Prosecutions under UCMJ Article 88 often hinge on whether the government can establish each statutory element through reliable evidence and permissible inferences. Litigation typically centers on how comments were made, the identity and status of the referenced officials, the context in which statements occurred, and whether the evidence satisfies the article’s scope. Witness credibility, evidentiary rulings, and interpretive questions about statutory language also play significant roles in shaping outcomes.
Disputes commonly arise over whether the government has demonstrated that the accused’s statements meet the statutory definition of “contemptuous” and that the subject of those statements qualifies as an official protected under Article 88. Questions may include whether the alleged remarks were actually made, whether they were directed at or about an identified officeholder, and whether the accused was on active duty at the relevant time. Contested issues often focus on whether contextual factors transform otherwise protected speech into conduct falling within the article’s prohibitions.
Litigation frequently addresses the mental state required to sustain a conviction under Article 88. Courts examine whether the accused acted with the requisite intent or knowledge that the remarks were contemptuous, or whether lesser mental states such as recklessness or negligence might suffice. Because statements may occur in informal, digital, or emotionally charged contexts, determining what the speaker subjectively intended versus what can be objectively inferred often becomes a central issue. Disputes may also arise over whether the government must prove that the accused intended the remarks to reach a particular audience or cause specific effects.
Witness credibility can significantly influence the fact-finding process. Differences in recollection, potential bias, or inconsistencies in testimony may affect how factfinders assess whether the alleged statements were made or interpreted accurately. In cases involving digital communications, questions may arise concerning authorship, alterations, or the reliability of metadata, which can further complicate credibility evaluations.
Common evidentiary disputes include the admissibility of statements made during interviews, the relevance and completeness of electronic communications, and the authentication of digital records. Challenges may also occur regarding searches of electronic devices, the lawfulness of access to social media accounts, or the scope of command-authorized inspections. Suppression motions frequently address whether investigators complied with constitutional and regulatory requirements when collecting statements or seizing devices.
Article 88’s language may give rise to interpretive disputes concerning what constitutes “contemptuous” speech, who qualifies as an “official,” and how the article interacts with First Amendment considerations. Ambiguities in cross-referenced provisions, such as definitions of duty status or protected categories of officeholders, can also become significant points of legal contention. These questions often require courts to balance statutory text, historical context, and prior case law.
Provoking speech or gestures that may accompany or escalate contemptuous expressions
Conduct unbecoming an officer, a common co-charged article in cases involving improper statements
Collateral consequences are administrative, professional, or legal effects that may arise from a conviction independently of the specific sentence adjudged at court-martial. These consequences may influence a service member’s military career, access to national security roles, or certain civilian opportunities, even after completion of judicially imposed punishment.
A conviction under UCMJ Article 88 may prompt administrative actions separate from court-martial findings. These may include:
A conviction involving contempt toward officials may raise concerns related to judgment, reliability, or professional conduct. These issues can affect eligibility to maintain or obtain a security clearance, potentially resulting in loss of access to classified information. Clearance-related consequences may also influence post-service employment with government agencies or contractors that require such eligibility.
Convictions under Article 88 do not ordinarily trigger sex offender registration or similar statutory reporting obligations. Any registration requirements arising from a conviction are determined by federal and state law and depend on the specific offense of conviction.
Although Article 88 is a uniquely military offense, the underlying conduct—such as certain public statements or actions—could, in limited circumstances, overlap with civilian criminal statutes or give rise to civil claims. Any such exposure would depend on the facts and applicable jurisdictional law.
For non-citizen service members, any court-martial conviction may affect immigration processes, including admissibility assessments or naturalization reviews. The impact depends on the nature of the conduct and relevant immigration standards, rather than the military-specific offense alone.
During the investigative phase of an alleged Article 88 violation, the choices made by a service member often influence the direction and outcome of the case well before any charges are preferred. Early legal representation helps ensure that these initial steps are informed and aligned with procedural requirements.
Military investigators frequently gather statements, digital records, and contextual documents at the outset of an inquiry. Early legal involvement helps clarify how evidence should be handled, what may be subject to privilege, and whether certain materials require additional review before being released. A civilian military defense lawyer can assist in ensuring that collected evidence is accurately preserved and properly interpreted.
Interviews conducted by command representatives or law-enforcement personnel often occur before a service member fully understands the allegation’s scope. Without legal guidance, a member may provide statements that are incomplete, inconsistent, or missing important context. These interviews may also include questions extending beyond the initial focus of the investigation.
Administrative inquiries and command-directed investigations can proceed independently of criminal processes and may rely heavily on information obtained early. Decisions regarding participation, documentation, and responses within these inquiries can influence later administrative or disciplinary outcomes.
Choices such as consenting to searches, providing statements, or submitting written responses can shape the evidentiary landscape throughout the case. These early actions may affect potential charges, the scope of admissible evidence, and the options available during any subsequent court-martial or administrative proceeding.
Gonzalez & Waddington is a civilian military defense law firm that represents service members worldwide in cases arising under the Uniform Code of Military Justice. The firm focuses on defending clients in complex military criminal matters, administrative actions, and adverse proceedings, providing guidance grounded in extensive experience with the military justice system.
If you are facing an investigation or action involving UCMJ Article 88, Gonzalez & Waddington can explain your options and provide informed legal guidance. Contact the firm to discuss your situation in a confidential consultation.
Q: What does UCMJ Article 88: Contempt Toward Officials cover?
A: Article 88 applies to commissioned officers who use contemptuous words against certain high-level U.S. officials, including the President, Congress, and senior executive or legislative leaders. The article focuses on statements made in an official or unofficial capacity that undermine respect for these offices. It is intended to protect the integrity of governmental institutions and maintain good order and discipline within the armed forces. Enlisted members and civilians are not subject to this article.
Q: What is the maximum punishment for UCMJ Article 88: Contempt Toward Officials?
A: The maximum authorized punishment may include dismissal, forfeiture of all pay and allowances, and confinement. Actual outcomes vary depending on the severity of the conduct, the officer’s duty position, and the manner in which the statements were made. Command discretion, evidentiary considerations, and aggravating or mitigating circumstances all play a role in determining the final result if the case proceeds to court-martial.
Q: Can an allegation under this article lead to administrative separation even without a conviction?
A: Yes. An officer may face administrative consequences such as adverse evaluations, counseling, reprimands, or administrative separation based on substantiated misconduct, even when no court-martial conviction occurs. Commands may pursue administrative action if they believe the conduct negatively affects good order, discipline, or service reputation. These processes use a lower standard of proof than a court-martial and can still result in significant professional implications for the officer involved.
Q: Do I need a civilian military defense lawyer for an investigation under this article?
A: Officers have the right to consult with a military defense counsel at no cost, and they may hire a civilian attorney if they choose. While civilian representation is not required, some officers prefer it for additional insight into administrative and criminal procedures. The decision often depends on personal preference, case complexity, and the potential for adverse actions. Consulting with qualified counsel early can help clarify rights and available options.
Q: Can an Article 88 allegation be handled without a court-martial, such as through administrative action or nonjudicial punishment?
A: Yes. Commands may elect to resolve alleged Article 88 misconduct through nonjudicial punishment, a reprimand, counseling, or administrative measures instead of a court-martial. The chosen approach often depends on the nature of the statements, the context in which they were made, and the officer’s service record. Administrative processes allow commands to address concerns while avoiding the formality and potential penalties associated with a court-martial.
Q: What types of evidence are typically used in an Article 88 investigation?
A: Evidence may include written statements, electronic communications, social media posts, recordings, or witness testimony regarding the alleged contemptuous remarks. Investigators often review the context, audience, and intent behind the statements. They also evaluate whether the remarks were made in an official capacity or could reasonably impact good order and discipline. The overall goal is to determine whether the content meets the legal standard for contempt under Article 88.
To better understand the Articles of the UCMJ and how military law works in practice, you can review the UCMJ and related authorities here: UCMJ Articles and Military Justice Resources. For additional official guidance, visit the U.S. Navy Judge Advocate General’s Corps website at jag.navy.mil.
A renowned military criminal defense attorney and best-selling author, Michael Waddington defends clients worldwide in serious cases and trains lawyers in advanced cross-examination. He is frequently featured by major media outlets like CNN and 60 Minutes.
Alexandra González-Waddington is a top military and civilian defense attorney who has handled high-profile sexual assault, violent crime, and war-crimes cases globally. Her work is widely recognized by media outlets including 60 Minutes and ABC’s Nightline.
