No, Flynn Shouldn’t be Court-Martialed

Retired generals are no longer in the military.

WaPo’s Missy Ryan explainsWhy the Pentagon isn’t heeding calls to prosecute Michael Flynn under military law.” despite widespread calls for it to do so. The answer should really be obvious. The background, for those who might have missed it:

When Michael Flynn, a retired three-star general, appeared to back calls for a coup last week, critics accused him of defying military deference to civilian authority, a tenet that is central to the ethos of the armed forces.

Speaking at a QAnon-themed conference in Texas, Flynn was asked why a coup similar to one that occurred in Myanmar could not happen in the United States. Flynn, President Donald Trump’s first national security adviser, has remained a vocal supporter of the former president and the false assertion he won a second term in office.

“I mean, it should happen here,” Flynn responded to the questioner, a man who identified himself as a Marine. “No reason.”

While Flynn subsequently disavowed any support for a coup on social media, saying his words had been misrepresented by the media, the comments intensified calls from some lawmakers and other critics for the military to prosecute the former officer, who receives a military pension, for sedition.

When I first saw the reporting on this a few days ago, I somehow got the impression that Flynn called for a Myanmar-style coup in his speech rather than agreeing with a questioner. Still, given the overall context of the rally and Flynn’s continual demonstrations that he’s an authoritarian loon over the last five years, I’m disinclined to give him much benefit of the doubt.

Still, he’s been out of the Army since 2014. As much as his comments disgrace the military profession and his oath of office, he is no longer legally beholden to either. His only obligations are moral and ethical, which, alas, seem not to bind him and which come with no legal remedy, much less in military courts.

The military can recall retired personnel to try them for alleged crimes under the Uniform Code of Military Justice (UCMJ), even when those acts occur after retirement. But experts say it has done so only a few dozen times since the 19th century.

And even the first part of that statement is too permissive and overbroad.

According to a senior defense official, who spoke on the condition of anonymity to describe internal deliberations, “one factor that was most likely considered in this case was the speed with which Gen. Flynn walked back his comments and the decisiveness and the clarity with which he did it.”

While I’m sure that would have made the difficult politics of the Biden administration prosecuting a former Trump official even more fraught, there would simply have been no grounds for court-martial even if he had doubled down.

According to Mark Nevitt, a former military lawyer who teaches law at Syracuse University, most of the instances in which the military had used the UCMJ to hold retirees accountable have had a “clear military nexus,” for example when an incident occurs on a military base or involves a military victim.

Right. If Flynn had committed a crime while on active duty, he might well be recalled from retirement to face the charges. (Although even that would be unusual this far removed.) And, while I’m not a lawyer, I very much doubt he could be court-martialed for crimes committed today on an American military base or against an American servicemember unless it occurred overseas. Domestically, he could simply be tried in US federal court.

Moreover, the military’s ability to try retirees is being challenged in federal courts in a trio of cases, another factor that may heighten Pentagon wariness.

Stephen Vladeck, a University of Texas law professor who is representing retired service members in two of those cases, said that circumstances that led to the establishment of the military’s ability to prosecute retirees under the UCMJ have changed.

Around the time of the Civil War, military retirees were often considered a last-resort officer cadre that could be called back as needed. But that is no longer the case. In addition, courts have ruled that military pensions do not constitute pay for any ongoing service, but rather are deferred compensation, which some experts say means retirees should not be seen as part of the military subject to the UCMJ.

Indeed, while retired officers may theoretically be recalled to active duty involuntarily, it’s exceedingly rare. Sometimes, retired generals are brought back, voluntarily, for a very short period to perform some special duty. In times of expansion during war, recently-retired officers in special skill categories with limited active duty numbers may be asked to voluntarily return to active service. But Flynn, who is over 60 and has been retired or more than five years, is the lowest possible category for call-up.

Beyond that, as outrageous and un-American as Flynn’s comments were, resort to court-martial might be worse still:

A chief reason critics have advocated military prosecution for Flynn, Vladeck said, is that courts have allowed the military to restrict the free speech rights of military personnel in a way that is prohibited for other Americans, potentially making for easier prosecution.

But experts said any case against Flynn would likely be questionable, especially since he quickly disavowed support for overthrowing the government.

“The Army is never going to bring this as a test case,” Vladeck said. “I think it’s more wishful thinking on the part of his critics.”

Flynn, a civilian, committed no civilian crime. He answered an outrageous question in an outrageous manner. We can that “free speech.”

Had he called for a coup more directly, and were he in a position where people listening might plausibly go try and stage one right then and there (which, granted, would have been difficult from Dallas), he might have been charged with incitement. But, then, he would be tried in a civilian court.

FILED UNDER: Law and the Courts, Military Affairs
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Michael Cain says:

    Question asked from ignorance, including where to even start looking… Can permission to use honorifics such as “Lt. General (Ret.)” in signature blocks or on business cards be withheld or revoked without a court martial?

  2. James Joyner says:

    @Michael Cain:

    Can permission to use honorifics such as “Lt. General (Ret.)” in signature blocks or on business cards be withheld or revoked without a court martial?

    No. Three- and four-star rank is positional rather than a true promotion, so the officer technically has to receive permission to keep those ranks in retirement. But, having secured it, there’s no way to strip it from him absent court-martial that I’m aware of.

  3. Scott F. says:

    Still, given the overall context of the rally and Flynn’s continual demonstrations that he’s an authoritarian loon over the last five years, I’m disinclined to give him much benefit of the doubt.

    When I read you dismissing Flynn (and other outre personalities in the Trump/Seditionist crowd like Rep. Greene) as loons and kooks, I always wish you wouldn‘t. These are public figures drawing big, adoring crowds whose messages are then amplified over boundless social media platforms and not some randos at the end of a bar screaming into their beers. As Charlie Sykes noted at The Bulwark yesterday, a clown with a flamethrower still has a flamethrower.

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  4. gVOR08 says:

    Flynn clearly has mental issues, which led him to becoming a flaming RWNJ. Which led to the behavior that got him fired by Obama. And led to his being hired by Trump, charged by DOJ, and pardoned by Trump. He should probably be forced into a psych evaluation and maybe confined for his own safety. He’s a threat to small d democracy and to the Republic. But I fail to see even what the charge would be in this incident.

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  5. Jim Brown 32 says:

    I was looking through some old files I had the other day and came across an old memo I had with then BG Flynn’s signature on it–I just shook my head in disgust.

    As I’ve said before–never crossed streams with Flynn in the Joint world but I’ve worked with people that did–and his reputation with them is pretty much the same as it is now: one of the few nut cases that was smart enough to conceal the stupid from their superiors and break through to the GO ranks. It does happen occasionally.

    I mean let the guy live–I was and executive officer once and use to get calls from old crusties all time identifying themselves as “Brigadier General Retired” or “Colonel Retired” so and so wanting to come visit the flying unit I was in for a trip down memory lane. My response was pretty much the same: “MR So&So–I’ll be happy to give you the number to Public Affairs who can provide the times when base tours for veterans are being conducted.”

    Once you have a DD214–you’re a civilian. The influence Rolodex for a GO is typically good for about 5-7 years after that–all of the underlings they were sponsoring to get promoted are themselves retired and gone. Flynn is probably well past the life cycles of his rolodex–and he’s intel. Not exactly the most glamorous or easiest to work specialty but you need them so they are tolerated.

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  6. James Joyner says:

    @Scott F.: I don’t doubt that they’re dangerous. I just think a significant number of these people genuinely have a screw loose or, like Trump, are suffering from some sort of dementia. That doesn’t make them immune from culpability, in that I think they can form mens rea, but they’re not quite right, either.

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  7. Scott F. says:

    @James Joyner:
    I get your meaning and I won‘t presume to be your style guide. But I‘d humbly submit it would be better for you to refer to Flynn et al as demented, deranged or mad rather than looney, nutty or kooky. The sillier characterizations trivialize these people’s destructive potential. I fear what they might do or bring other people to do.

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  8. James Joyner says:

    @Scott F.: Fair enough.

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  9. gVOR08 says:

    Digby has a post up, mostly quoting a TPM article, on the Q narrative behind this Myanmar style coup business. Which is why Flynn was asked about it. Their military used a fake “stolen election” claim to justify their coup. And Flynn was almost certainly aware of the Q narrative when he made the remark and when he pretended to walk it back.

    I stand by my @gVOR08: earlier statement that Flynn’s nuts, and a danger, but there’s really no legal way we can or should address his remarks (except to point out that it’s nuts). @Scott F.: suggests “demented”. A good word, I think, for Flynn.

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  10. Liberal Capitalist says:

    Conversely, yes, he should.

    Retired or not, he is looked upon by some as a leader… and private statements that are treasonous do not “… support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same”

    Like the fact that every gun owner is a responsible gun owner, until for whatever reason suddenly one is not, resulting in a horrendous outcome… Flynn decided to shoot his mouth off. His choice, and actions have consequences.

    Strip him of honorific title, strip him of any military related benefits.

    As to first amendment rights, I am not suggesting that he be detained, or incarcerated. He can continue to be free to be and speak… just without the rank and benefits of one who defends this democracy.

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  11. dazedandconfused says:

    @Jim Brown 32:

    I beg to differ slightly with ya on that. Civilians can’t be called into service on a whim of the powers that be in the Pentagon, and “retired” (inactive?) officers can. There is some grey there.

    As much as I despise what Flynn has become he was not just another stupid-slick officer. He served McChrystal with distinction and spoke truth to power during the big decision to go COIN in Afghanistan by going against the Petraeus grain in his report, taking the position that COIN wouldn’t worth there (and he was right about that) which earned him the top spot in the DIA.

    IMO he, once upon a time, earned his retirement benes. We must shun him, and he must never serve as an active duty officer again, but stripping him of what he earned before he lost his marbles would be wrong.

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  12. de stijl says:

    Why not?

    Institutional guy responds institutionally.

    Joyner is predictable.

  13. Jim Brown 32 says:

    @dazedandconfused: Well to be honest–most on the Military side of the decision-making process knew COIN strategy wasn’t solving the right problem–including McChrystal. This is one of those cases where you know the sensible COA–withdrawal–is not politically viable to POTUS/SECDEF. We had to do “something” different and the only option left after the traditional nation-building playbook failed was to see if we could precision kill-capture our way out of the problem.

    The problem with COIN is its only effective if the Insurgents are an anomaly in the dominant culture–that wasn’t true of the Vietcong and it isn’t true of the Taliban. Sure, the Taliban are a few degrees more repressive than the standard Afghan–but they are on the same street and block ideologically.

    There has to be a significant catastrophic event to change a dominant culture and precision raids don’t have the scale to cross this threshold. I say this to say–I don’t give Flynn any credit for being particularly enlightened on this. Sometimes DOD has to draw up a hailmary play to give POTUS a shot at getting what they want. Even the best designed hailmary–is still a desperation play with low likelihood of success. Was Flynn good at providing intel needed to drive operations? Absolutely. Cudos to him–but he did so in an utterly toxic manner that wasn’t worth the squeezed. Very few people in DOD are irreplaceable–there are a handful. I have no doubt that some Intel Colonel that had to retire because they didn’t make GO could have done as good of a job without being the jerk that Flynn was.

  14. dazedandconfused says:

    @Jim Brown 32:

    Yeah, anybody that bothered to read the COIN book could’ve seem the problem: You need a government there that’s worth supporting. I only give credit to Flynn for producing a report that was very much what Petraeus and McChrystal did not want it to be.

    Reading McChrystals book makes me believe he believed in it when he took the job but after a year of actually trying to do it he lost faith. Then the burnout set in. At the time the awkward situation which was his end cropped up on some level he wanted to be canned or didn’t care if he was.

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