The Army’s first-ever lead special trial counsel just got fired for behaving ethically

Last December, Brigadier General Warren Wells was appointed and confirmed by the Senate to serve as the Army’s Lead Special Trial Counsel. The newly created position was part of a sweeping effort by Congress to reform the military justice system to insulate against unlawful command influence in cases involving serious criminal offenses, such as those involving sexual assault and violence.

At the time of Wells’s appointment, Secretary of the Army Christine Wormuth hailed him as “the experienced leader the Army needs to lead the Office of Special Trial Counsel and ensure its independent oversight of the Army’s most complex cases.” 

Yet earlier this month, Wells was relieved of his position over a single decade-old email. This came after he had served only a year as the Army’s top independent prosecutor and within weeks of the statutory deadline for the new office to become fully operational.

In 2013, serving in his leadership role, Wells had urged a group of fellow defense attorneys to uphold their duty in the face of high-pressure sexual assault cases. The email read in part, “hopefully a Soldier will be able to get a fair trial. You and your teams are now the ONLY line of defense against false allegations… [y]ou literally are the personal defenders of those who no one will now defend, even when all signs indicate innocence.”

That email was the essence of leadership. Wells exhorted defense counsel to do their job and remain independent from outside influence. Service members deserve nothing less from appointed defense counsel. What American would want otherwise?

By firing Wells, the Secretary of the Army endangers the professional ethos that is the cornerstone of our armed forces. Political commissars operating in Joseph Stalin’s Russia or implementing Vladimir Putin’s personal desires would understand her desire to control independent thinking and professional practice among sworn public servants.

As a retired Army Judge Advocate, I have never previously thought that I should condition advice to students based on the possibility that, if they take their legal careers into the armed services, they might be obligated to sacrifice professional judgement or ethical obligations in doing so. This has now changed with the winds of political correctness blowing across President Biden’s Army, potentially devastating combat effectiveness. 

Secretary Wormuth fired Wells, she said, because she had lost “trust and confidence” springing from the old email. Her decision signals that fear of political recrimination should color the advice of active-duty attorneys acting on behalf of clients.

The irony is that Wells’s removal vindicates his caution from a decade ago to his subordinate attorneys, that they should perform their duties in the face of criticism by “those with an agenda.” 

The ethical calling of defense attorneys is to zealously represent their clients. Secretary Wormuth has signaled that compliance with professional and ethical duties is insufficient. Careers now depend on shifting political winds.

This will lead lead defense counsel to give weak or ineffective legal advice. It is also the pathway to unlawful command influence that rattles in any American family sending daughters and sons into uniformed service.

We owe service members unfettered legal advice in pursuit of their basic human rights to fair and independent proceedings. Representation of clients cannot coexist with considering the interests of either military or civilian superiors. Any other rule creates inescapable perceptions of unfair corruption of supposedly impartial trial processes. 

Today, our all-volunteer Army already faces serious recruiting headwinds. This is just one more reason for smart and well-educated young people to avoid serving as officers.

Wormuth had every official right in her role to shape the United States Army to her liking. By the same token, Biden owns this problem. The secretary of the Army serves at his pleasure. He has constitutional authority to request her resignation for precisely the rationale she employed in eroding the independence of uniformed lawyers.

Biden, and he alone, can attest that the current secretary of the Army has “lost my trust and confidence.” Anyone who cares about the integrity, apolitical professionalism, and preparedness of the U.S. military should demand that he stand for these principles.

Professor Michael Newton is a West Point graduate and former U.S. Army Judge Advocate. He currently serves as a professor in the Practice of Law and Director International Legal Studies Program at Vanderbilt University Law School.