JAGs in the dock: Civilian prosecutions, ethical exodus and the perils of militarizing justice

The Trump administration's turn to military Judge Advocates General (JAGs) to handle civilian prosecutions in Minnesota and elsewhere is more than a staffing workaround; it is a stress test of core rule-of-law commitments. If the Department of Justice (DOJ) cannot retain enough career prosecutors--US Attorneys (USAs) or Assistant US Attorneys (AUSA)--to carry its criminal docket because these civilian attorneys are voting with their feet over ethical concerns, the solution is not to import a parallel legal corps whose training, licensing, supervisory structure and professional obligations are calibrated to a different mission. Instead, it is to fix the problem at its source: reinstating the integrity and independence of federal prosecution.

Two premises must anchor this discussion. First, prosecutors are not mere case processors. They exercise sovereign power to investigate, to charge, to seek detention and to recommend sentences. Those powers require independence, restraint and a culture that prizes dismissing weak or unjust cases as much as winning strong ones. Second, military judge advocates are indispensable to the functioning of the armed forces, but they are trained and organized to serve commanders and the mission, within a military hierarchy, under the Uniform Code of Military Justice and the law of armed conflict. Those differences matter when the forum is an Article III court or a state court, the defendant is a civilian and the law is ordinary criminal law.

Reports of a DOJ attrition spike--driven by line attorneys unwilling to sign indictments they do not find meritorious--should alarm anyone who cares about durable institutions. Prosecutors who decline cases on principled grounds are living their oaths. If departures mount because they are pressured to advance theories they cannot ethically stand behind, then forcing the same cases across the goal line with JAGs does not cure the ethical defect; it compounds it by weakening the norm that prosecutors must independently believe in the merits. The path forward is to restore an environment where career prosecutors can exercise independent judgment without fear of reprisal and where declinations are treated as acts of fidelity to justice, not disloyalty.

Against that backdrop, deploying JAGs to "backfill" DOJ raises at least five concerns the public should see clearly.

1. Competence and forum-specific expertise. Courtroom skill is not a fungible good. Military litigators excel in courts-martial, administrative separations, operational law and command counseling. Civilian criminal practice, evidentiary norms, jury dynamics, local rules, discovery obligations and constitutional suppression doctrines are distinct ecosystems. Bridging those differences requires more than talent; it requires time, supervision and admission to practice before the relevant tribunals.

2. Licensing and authority to appear. Civilian prosecutions demand compliance with state licensure, federal district admission, local counsel rules and professional responsibility regimes. JAGs are licensed attorneys, but a military credential does not automatically confer standing to prosecute in civilian courts or to sign pleadings under those rules. If the government defaults to blanket federal preemption arguments or ad hoc deputations to skirt ordinary admission requirements, it risks undermining the very legitimacy it seeks to project.

3. Independence versus chain of command. Military lawyers serve within a command structure, balancing their professional responsibility with military duty. In civilian prosecutions, independence from political direction is a constitutional and cultural guardrail. Blurring those lines by placing prosecutors under a military chain--even indirectly--invites doubt about whether charging decisions reflect independent legal judgment or operational imperatives. The duty not to carry out unlawful orders exists in the armed forces, but the day-to-day space to dissent in a civilian prosecutorial office is a different kind of protection, embedded in professional norms, whistleblower channels and institutional history.

4. Discovery and Brady/Jencks compliance. Civilian criminal discovery, and the prosecutor's non-delegable obligation to identify, gather and disclose favorable evidence across sprawling investigative teams, is a discipline unto itself. Importing attorneys unfamiliar with a district's discovery culture, without robust onboarding and oversight, risks systemic violations that may not surface until convictions are overturned.

5. Community legitimacy. Prosecutors serve communities. They answer to jurors, victims, defense counsel, local judges and an often-messy civic fabric that confers legitimacy on hard outcomes. Swapping in transient, military-assigned litigators--even highly capable ones--can degrade the community's sense that criminal justice is local, accountable and independent of national political currents.

These are structural critiques, not ad hominem shots at JAGs. Indeed, military judge advocates often bring rigor and integrity that honor the profession. Which is why the recruiting outreach I received during the 100^th Anniversary of Black History Month, in the same week as the president of the United States sent out a "truth" social post containing an AI-enhanced caricature of the first Black president and the first Black first lady as apes and therefore, by implication me and my family, landed with such irony.

On Feb. 3, 2026, I received an email from Captain Francis X. Skehan, USMC, inviting me to consider the Marine Corps Staff Judge Advocate (SJA) Program, touting immediate courtroom opportunities, roles as both prosecutor and defense counsel, broad practice exposure and leadership development, and offering to discuss limited positions available for qualified attorneys seeking public service and trial work.

As a Black woman litigator, long past the window for a military career, proudly committed to DEI, and a "very-woke" never-Trumper, I know I am not the target demographic one expects for Marine Corps recruiting in the age of Trump and Hegseth--and yet the pitch hit my inbox, bright with promises of rapid responsibility. The message itself was professional and earnest. But its timing and content, set against the administration's move to plug DOJ's leaks with uniformed lawyers, underscored the larger risk: converting military legal talent into a general-purpose prosecutorial labor pool for civilian matters the career bar is rejecting.

A healthier approach would start with three corrective steps.

1. Rebuild prosecutorial independence. Reaffirm, in policy and practice, that line attorneys may--and should--decline to charge where evidence is thin, law is strained, or equities counsel restraint, and that such declinations are career-neutral or even career-positive. Codify protections against retaliation for principled dissent.

2. Fix staffing the right way. Address pay compression, crushing caseloads and burnout. Expand training pipelines and mentorship, and slow-walk politically charged initiatives until they can be staffed by attorneys who genuinely own the theories advanced.

3. Draw bright lines around military roles. If JAG participation in civilian forums is contemplated, limit it to clearly defined, legally authorized contexts; ensure full compliance with licensing and admission rules; wall off command influence; and subject the program to transparent oversight by civilian leadership, with public reporting.

Civilian criminal justice is not merely a service line the government can outsource when in-house counsel balks. It is a constitutional function that depends on independence, merit screening and community trust. JAGs serve the nation best when they serve the missions for which they are uniquely trained. DOJ serves the nation best when it empowers its own career prosecutors to exercise the judgment the Constitution, the courts and the public expect of them.

Captain Skehan's email, earnest and opportunity-forward, speaks to the Marine Corps' confidence in its legal corps. It highlights a path where new attorneys "won't wait years to get meaningful courtroom time" and can "serve as both prosecutor and defense counsel early in [their] career," with a promise of "limited positions available for qualified attorneys who want to make a difference." That is a strong pitch--for the Marine Corps, and the military JAG Corps at large. However, it is not a substitute for the hard work of restoring the independence and credibility of civilian prosecution at the DOJ.