Retired Lt. General Michael Flynn could very well finally face court-martial for calling for a coup against the United States government, a violation of the Uniform Code of Military Justice and his oath.
Last month, University of Texas law professor Steve Vladeck filed a brief in federal court arguing that court-martialing retired military personnel is unconstitutional, which would be a blow to those who are demanding Flynn be court-martialed after he advocated for the violent overthrow of the government in his continued support of disgraced former President Donald Trump.
Just filed in the D.C. Circuit:
Our brief in Larrabee defending the district court’s ruling that it’s unconstitutional to subject retired servicemembers to court-martial — rather than civilian trial — for offenses they commit *while* they are retired:https://t.co/aXtpz4h5nX pic.twitter.com/hu7RLkjT8N
— Steve Vladeck (@steve_vladeck) May 26, 2021
When asked if there could be a Myanmar-style military coup here in this country, presumably as a means to reinstall Trump as president despite his legitimate 2020 Election loss, Flynn enthusiastically supported the idea.
“No reason,” he said. “I mean, it should happen.”
Considering the fact that hundreds of Trump supporters stormed the Capitol just months earlier in an attempt to overthrow democracy and keep Trump in power, Flynn’s words amount to incitement of future violent insurrections and should be punished.
Flynn currently draws a pension and other benefits afforded to retired officers, all paid for by American taxpayers, most of whom oppose the overthrow of our democracy. Congress passed the Uniform Code of Military Justice in 1950, which says that retired military officers like Flynn are still subject to the code because they could be called into service in an emergency as part of the Fleet Marine Corps Reserve. Congress has the authority to pass these rules via the Constitution.
And it certainly looks like Flynn might be court-martialed since the government filed a brief arguing against Vladeck.
Congress’s judgment that the Fleet Marine Corps Reserve is part of the armed forces was plainly reasonable given members’ military obligations and benefits. In particular, members can be recalled to active duty, face activity restrictions, have reporting obligations, may use their military titles and wear military uniforms, and receive retainer pay. Thus, contrary to Larrabee’s suggestion, Fleet Marine Corps Reserve members have military responsibilities and must follow military orders and regulations. Subjecting them to court-martial jurisdiction is also consistent with longstanding historical practice. Congress’s decision to exempt other servicemembers from court-martial jurisdiction under certain conditions has no bearing on its power to make a different choice here.
The federal government has filed its reply brief in the D.C. Circuit in Larrabee, on why (in its view) the Constitution allows courts-martial of retired servicemembers for post-retirement offenses:https://t.co/LSySDSfaag
Oral argument will likely take place sometime this fall. https://t.co/RQThYguIP1
— Steve Vladeck (@steve_vladeck) June 16, 2021
It’s a strong argument and one that the courts should agree with unless conservative judges are hell-bent on protecting Flynn at all costs even if it means undermining the Constitution.
Flynn draws a pension and still uses his rank. As a retired general, he absolutely should be held to a higher standard. Calling for a military coup against the government violated his oath and the Uniform Code of Military Justice. Court-martialing him and stripping him of his rank and benefits is the right thing to do.
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