There seems to be no limit to the depths of disgrace and discredit that retired Lt. Gen. Michael Flynn will scrape in his plunge toward political extremism. But does his latest headline-grabber cross the line into criminality? Can he somehow be punished for advocating a coup?
Flynn made the comment at a QAnon-themed conference in Texas this past weekend. After Flynn delivered a speech to the group, a man in the audience rose and said, “I’m a simple Marine. I want to know why what happened in Minimar [he was referring to the February military coup in Myanmar] can’t happen here.” Amid much whooping and clapping from the crowd, Flynn replied, “No reason. I mean, it should happen”—i.e., a coup should happen here. (Flynn has since denied saying this, but the videotape clearly shows he did.)
This is serious business. We’re talking about a retired three-star general who was President Donald Trump’s national security adviser and, before then, director of the Defense Intelligence Agency. The fact that he was fired from both of those high posts—from the White House for lying to the vice president, from the DIA for running the agency into the ground—doesn’t minimize the dangers of this appalling, reckless breach of the military’s most sacred commitment to obey lawful civilian authority.
But, again, did Flynn commit a crime?
The First Amendment protects free speech, but the Uniform Code of Military Justice—which applies to retired and active-duty personnel of the U.S. armed forces—doesn’t always. Rep. Elaine Luria, a retired Navy commander who is now vice chair of the House Armed Services Committee, said that Flynn’s comments “border on sedition” and that he should be tried in a military court.
“Sedition” has a pretty strict meaning. Under Article 94 of the UCMJ, an officer is guilty of sedition if he or she “creates, in concert with any other person, revolt, violence, or other disturbance,” while having the “intent to cause the overthrow or destruction of lawful civil authority.” The officer can also be charged with sedition by simply “fail[ing] to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence.”
At the Texas conference, Flynn clearly expressed a desire for a coup (“the overthrow or destruction of lawful civil authority”), but he did nothing to create “revolt, violence, or other disturbance.” So Flynn’s remark may “border on sedition,” as Luria put it, but that’s sort of like “almost horseshoes.” No prize for the one, no court-martial for the other.
On the other hand, the main point of military law is to maintain discipline, not merely deliver justice. (The seminal book on the subject, written in 1970 by Robert Sherrill, is titled Military Justice Is to Justice as Military Music Is to Music.) And a coup, which Flynn was certainly promoting, is the opposite of discipline. So let’s take a look at another section of the UCMJ, Article 88, outlawing “Contempt Toward Officials.” It reads:
Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
Setting aside for a moment the stunningly broad language of this statute, advocating a coup in a public speech certainly indicates contempt toward officials. Could Flynn be court-martialed under this clause, or perhaps have his retirement pay revoked?
Again, afraid not. The key phrase in Article 88 is that it applies to officers who use “contemptuous words” against officials. In its commentary on this article, the military’s official Manual for Courts-Martial states: “If not personally contemptuous, adverse criticism of … officials … in the course of a political discussion, even … emphatically expressed, may not be charged as a violation of the article.”
Flynn did not heave contempt at any official “personally,” so this charge wouldn’t hold much water either.
Then there is Article 134, covering “conduct of a nature to bring discredit upon the armed forces.” This is a catchall clause, allowing the military to court-martial troublemakers who haven’t committed more serious crimes. The list of Article 134 crimes includes cheating, lying, forging checks, committing adultery, and being drunk and disorderly.
For an officer to whip up a crowd with talk of a coup certainly brings discredit upon the armed forces. But it would be a stretch to haul retired officers into a military tribunal every time they acted ornery. In fact, a federal judge recently ruled that it is unconstitutional to court-martial a service member for an offense committed after retirement. The ruling is on appeal, but it makes a certain degree of sense.
Still, Flynn poses a problem, especially at a time when Secretary of Defense Lloyd Austin, himself a retired Army general, is trying to purge the ranks of political extremists and aspiring insurrectionists. One thing that Austin, the Joint Chiefs of Staff, military commanders, and any other officer in the public eye should do is to shun and shame Michael Flynn—denounce him, hold him up as a poster boy for bad behavior, turn the sorry, sordid devolution of his career into a case study of a path not to take.
During the Afghanistan war, as chief intelligence officer at Joint Special Operations Command, Flynn devised new and creative ways to fuse massive streams of data from several previously isolated intelligence agencies, then making the data available to troops on the ground. In short, he was a brilliant tactician, pulling together information to enable soldiers to kill more targets. This did not make him qualified to direct the Pentagon’s intelligence agency, a job that required strategic vision—and he was completely unsuited for a job like national security adviser, which requires that trait and a keen sense of national policy.
Former colleagues of Flynn say that his dismissal from DIA—a move ordered by the secretary of defense and director of national intelligence at the time (Robert Gates and James Clapper)—embittered him and made him ripe for recruitment by Donald Trump’s presidential campaign. Flynn made his pivot, leading the anti-Hillary chant of “Lock her up!” from the podium at the 2016 Republican National Convention—and has been plunging ever since. His indictment during the Mueller investigation triggered his dive into out-and-out conspiracy-mongering, especially after he was persuaded to retract his guilty plea—at which point he stopped cooperating with the authorities and started adopting slogans of QAnon and talking with alarming casualness about the possibilities—and appeal—of martial law to preserve or restore Trump’s presidency.
Flynn wants to be the face of an insurgent military cabal. The legal military authorities can’t toss him in the brig, and they shouldn’t turn him into a martyr in any case. But they need to counter, quash, ridicule, and otherwise nip his dark ambitions in the bud. They need to make clear, to one and all, that every moral and legal tenet of the U.S. armed forces, every idea animating American democracy, holds Michael Flynn in contempt.