​Chief Justice Roberts once said, “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.”1 With that in mind, we consider whether a military judge may strike a term in a negotiated plea agreement and then rewrite the agreement to his own liking over the objection of one or both of the parties. The President does not have a line-item veto and neither does a military trial judge. We answer in the negative.

​Appellant asserts eight assignments of error [AOE], which we renumber as follows: (1) that the evidence for Specification 1 of the Charge (indecent conduct) is legally and factually insufficient; (2) that the evidence for Specification 2 of the Charge (adultery) is legally and factually insufficient; (3) that the offense of indecent conduct in Specification 1 of the Charge is preempted by Article 120b(c), UCMJ; (4) that the military judge erred when he denied the Defense motion to suppress evidence; (5) that the military judge erred when he ruled that the Defense was not entitled to certain evidence in discovery; (6) that the Entry of Judgment as written is deficient; (7) that the Government committed a discovery violation when it failed to provide the Defense with certain impeachment evidence in discovery; and (8) that the military judge effectively acquitted Appellant of Specification 1 of the Charge when he acquitted him of the word “persuade.”

​We find merit in Appellant’s first AOE because the evidence for Specification 1 of the Charge is legally insufficient,2 and we set aside the guilty finding and dismiss this specification. While we do not find merit in Appellant’s second AOE, we do find merit in Appellant’s fourth AOE, set aside the guilty finding for Specification 2 of the Charge, and authorize a rehearing for this specification. In light of these conclusions and action, we also set aside the sentence and do not reach the remaining AOEs

We do not find the Government’s attempt to avoid the burden of proving an overt act persuasive for a number of reasons. First, the Government’s argument on appeal ignores concessions already made at trial. In its response to Appellant’s motion for a finding of not guilty of this offense under Rule for Courts-Martial [R.C.M.] 917, the Government did not argue that it was not required to prove an overt act, but instead argued that “the substantial step for an attempt can be satisfied by words alone.” Allowing the Government “to tell the military judge one thing . . . and then . . . assert something else on appeal . . . would go against the general prohibition against taking inconsistent litigation positions.”