Cal Cunningham, whose campaign for the U.S. Senate in North Carolina was turned upside down after National File exclusively reported on his affair with California PR consultant Arlene Guzman Todd, may have more than just lady problems.
The Raleigh News & Observer reports, “Extramarital affairs are a violation of the Uniform Code of Military Justice (UCMJ).”
The extramarital texts between Cunningham and Guzman Todd appear to have been sent during the summer.
Whether Cunningham could eventually face charges under the UCMJ will likely depend upon whether he was on active duty at the time the extramarital activity took place.
The formerly up-and-coming Democrat Cunningham, who is 47 years old, is also a lieutenant colonel in the U.S. Army Reserve. Cunningham has been assigned to the 134th Legal Operations Detachment at Fort Bragg for the U.S. Army Reserve Legal Command, according to service records provided by the Army. Archived press materials show that Cunningham departed for active duty in Afghanistan as recently as August 2011.
As NATIONAL FILE reported Monday, a second affair is alleged to have been ongoing since 2012, according to a staffer from Cunningham’s 2010 U.S. Senate campaign.
“He’s been having an affair with a good friend of mine since 2012. Not the woman mentioned in the story. Needless to say, my friend was devastated. But my feeling is, if they’ll cheat WITH you, they’ll cheat ON you!,” lawyer Erin Brinkman, who advised Cunningham’s 2010 campaign, writes on Facebook. Brinkman does not appear to be partisan, as her Facebook page features a John F. Kennedy quote stating, “Let us not seek the Republican answer or the Democratic answer, but the right answer.”
Cunningham could face dire consequences if an investigation ultimately proves his affair happened while he was on active duty.
The maximum possible punishment for adultery, which is a violation of Article 134 of the UCMJ, is a “Dishonorable Discharge, forfeiture of all pay and allowances, and confinement for one year,” according to Crisp and Associates.
The JAG officer’s affair could also see him facing charges under Article 133 of the UCMJ, which covers a host of behaviors qualified as “conduct unbecoming an officer and a gentleman.”
According to the Peter Kageleiry law firm, a military criminal defense law firm in Virginia Beach:
Article 133 provides for punishment of “behavior in an official capacity which, in dishonoring or disgracing the person an officer, seriously compromises the officer’s character as a gentleman, or action or behavior in an unofficial . . . capacity which . . . seriously compromises ther person’s standing as an officer.”
Article 133 could be the easier conviction for military prosecutors if the Cunningham affair makes it past the investigation stage to a full-blown UCMJ Court Martial trial.
Indeed, military prosecutors see article 133 as an easy means of obtaining a conviction in case they are unable to convict on the primary charge, according to Kageleiry.
Mainstream McClatchy outlet News & Observer found a source to bolster the idea that Cunningham might not have violated any UCMJ regulations, and were quick to publish that perspective while omitting the facts above.
“If [Cal Cunningham’s sext] messages were not sent when he was in duty status they are not punishable under the UCMJ,” said Eugene R. Fidell, a former U.S. Coast Guard judge advocate and current adjunct professor at NYU Law School.
In addition to campaigning full time, the beleaguered Cunningham serves in the Judge Advocate General (JAG) Corps, where he would’ve been in charge of trying and sentencing soldiers for infractions similar to those he now stands accused of.
As NATIONAL FILE reported: National File published a report that Cunningham is engaged in a second affair with a woman who did not know of Guzman Todd’s existence. Following these new reports, Cunningham dropped out of a Senate town hall scheduled on Monday afternoon, seemingly wanting to get away from the harsh media spotlight.“A U.S. Senate town hall scheduled for Monday afternoon is off. Unfortunately [Cal Cunningham] has backed out. Organizers will try to reschedule,” wrote Jeff Tiberii a Political Reporter for WUNC.
“I’m disappointed for the organizers,” Tiberii added, “also that we will not hear from Cunningham about sexually suggestive texts he sent to a woman (not his wife, nor mother of his children.”
Cunningham admitted to the steamy texts published by National File on Friday night, telling The News & Observer in a statement that they were legitimate. “I have hurt my family, disappointed my friends, and am deeply sorry,” Cunningham said.
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