At a rally in Dallas on May 30, 2021, retired U.S. Army Lieutenant General Michael T. Flynn put his foot in his mouth. Again. This time his offense was a comment in response to a rallygoer’s suggestion that the United States should have a military coup à la the one in Myanmar. His specific words were “No reason, I mean, it should happen here. No reason. That’s right.”

The remark has triggered a fusillade of calls for General Flynn to be recalled to active duty (he retired years ago) and prosecuted before a court-martial. The latest example is this video from VoteVets. A widely circulated sign-on request from retired Major General Paul Eaton says:

What Flynn did is sedition. And to be absolutely clear – it’s a treason that our men and women in uniform would never ever countenance.

I’m calling for Michael Flynn to be recalled to active duty and court martialed for his treason. Do you agree with me? Add your name today to say you support court martialing Michael Flynn for his treason.

Flynn violated the oath we all took when we enlisted – to support and defend the Constitution. That oath doesn’t retire when you do.

Whatever your personal views of General Flynn (I’ll spare you mine), might we all please get a grip? Pretty much everything in the VoteVets statement and several others that have found their way into the news coverage is wrong, misleading, or seriously incomplete.

First, although Congress has long provided for court-martial jurisdiction over some categories of military retirees, the constitutionality of those provisions has never been directly upheld by the Supreme Court. Most recently, Judge Richard J. Leon of the U.S. District Court for the District of Columbia held that at least one of those provisions is unconstitutional. That case is currently on appeal to the U.S. Court of Appeals for the District of Columbia Circuit. [Full disclosure: I am one of the appellee’s attorneys.] Another case raising this issue is pending a decision by the U.S. Court of Appeals for the Armed Forces. Both cases will be eligible for review by the Supreme Court. I personally believe the provisions at issue are unconstitutional, but concerned Americans should at least be aware that there is a substantial question on that score and that the issue is in active play.

Second, contrary to the VoteVets solicitation of support, and assuming the provisions for court-martial jurisdiction over retirees are constitutional, a retiree need not be recalled to active duty in order to be tried by court-martial. At times, retirees have been tried without having been recalled and some have appeared in court in civilian clothes.

Third, there has been some loose talk about offenses General Flynn may have committed. VoteVets refers to both treason and sedition, as if they are the same thing. They are not. For one thing, a court-martial cannot try a charge of treason, which is not a crime under the Uniform Code of Military Justice (UCMJ). Only a federal district court can try such a charge, and that requires indictment by a (civilian) grand jury, not an order by a military commander. As for sedition, which is forbidden by Article 94 of the UCMJ, I’m hard-pressed to see how such a charge would fly based on General Flynn’s comment. As I wrote the other day on the Global Military Justice Reform blog that I edit:

Article 94(2) provides that a person subject to the Code who, “with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition.” General Flynn’s comment seems not to satisfy the definition. Under Article 82(b)(2), however, soliciting or advising “another” to commit sedition is also an offense, even if sedition itself never occurs or is attempted. It is at best doubtful that his comment qualifies under this provision. Who was the “other”? Everyone in his audience? Paragraph 6.b.(1) of the Manual [for Courts-Martial] requires that the solicitee or advisee be “a certain person or persons” (emphasis added).

In other words, forget about prosecuting General Flynn for either committing sedition or soliciting or advising someone else to do so.

(Incidentally, it makes no difference, from the standpoint of whether he committed either sedition or solicitation of sedition, that he walked back his comment. Sedition is an instantaneous offense. Recantation might show contrition—I know, I know, we are talking about Michael (“Lock Her Up”) Flynn here—and would be a factor in deciding whether to bring a case, but it has nothing to do with whether an offense was committed. Interestingly, the official “non-binding” guidance on the disposition of UCMJ charges takes account of the accused’s remorse or contrition only in connection with plea agreements, and not otherwise.)

What other UCMJ offenses have people mentioned? Some have tossed around Article 88, which criminalizes the use of contemptuous words in reference to a sitting President and other high officials. General Flynn’s comment is not even close.

There have been suggestions that Article 133 (which criminalizes conducting unbecoming an officer and a gentleman) might do the trick, or that the so-called General Article (Article 134) might apply. Again, that’s just wrong.

“Conduct unbecoming” is a malleable provision, but it is very hard to see how it could apply. The Manual for Courts-Martial explains: for action or behavior in a private capacity (and General Flynn’s comment was uttered in a private capacity, even if the venue was very public), it must dishonor or disgrace him personally, “seriously compromising [his] standing as an officer.” It goes on to observe:

There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty, unfair dealing, indecency, indecorum, lawlessness, injustice, or cruelty. Not everyone is or can be expected to meet unrealistically high moral standards, but there is a limit of tolerance based on customs of the Service and military necessity below which the personal standards of an officer, cadet, or midshipman cannot fall without seriously compromising the person’s standing as an officer, cadet, or midshipman or the person’s character as a gentleman.

Examples of such conduct include—

knowingly making a false official statement; dishonorable failure to pay a debt; cheating on an exam; opening and reading a letter of another without authority; using insulting or defamatory language to another officer in that officer’s presence or about that officer to other military persons; being drunk and disorderly in a public place; public association with known prostitutes; committing or attempting to commit a crime involving moral turpitude; and failing without good cause to support the officer’s family.

Is it possible to squeeze General Flynn’s comment into Article 133? Color me skeptical. I would much rather defend than prosecute such a charge, even if the government were to try to make the rally comment only the most recent in a larger pattern of outrages. If the Army did not see his earlier actions as worth pursuing, the rally comment isn’t the straw that somehow breaks the prosecutorial camel’s back.

People have also casually cited Article 134, which makes it a military offense to engage in conduct prejudicial to good order and discipline or service-discrediting conduct or to commit any non-capital federal crime. Here there are multiple problems. For one thing, military law has a preemption doctrine under which offenses that fall under one of the more particular “punitive articles” cannot simply be swept into Article 134. This would prevent charging sedition or solicitation of sedition as a violation of Article 134. As for treason, that is a capital offense under federal law, and thus is outside the reach of the third clause of Article 134.

Might a clever judge advocate cobble together some kind of bespoke charge under Article 134? It’s been known to happen, as in the famous Sadinsky case, where a Navy sailor, on a dare, jumped off an aircraft carrier while underway. The charge was novel but his conviction was upheld. Nonetheless, military lawyers know that novel charging is playing with fire.

General Flynn is clearly bad news and it is not surprising that he has made himself a pariah among military retirees and other veterans. He probably has few admirers left among serving flag and general officers. It’s fine—and important—to criticize his reckless (if not outright dangerous) talk, but let’s not waste any more time spinning out theories of ways to drag him into a court-martial.


Editor’s note: For a different view, readers may be interested in Lt. Col. Yevgeny Vindman and Lt. Col. Daniel Maurer’s What To Do About Lt. General (retired) Flynn: Military Justice and Civil-Military Relations Considerations.

Photo credit: Tasos Katopodis/Getty Images