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Michael Flynn's 'coup' comment shouldn't trigger a court-martial

Retired generals should be treated like the civilians they are.

Michael Flynn, former President Donald Trump’s disgraced (and pardoned) former national security adviser, is back in the news after suggesting Sunday that a military coup like the one in Myanmar “should happen here.”

Although Flynn has since tried to backtrack from his remarks (which were captured on video), a number of commentators, including former Labor Secretary Robert Reich, have argued that he engaged in sedition — and that, as a retired Army officer, he can and should be tried by court-martial for that offense (among others).

Realistically, there’s no universe in which the U.S. Army is going to prosecute Flynn, even if his preposterous comments come close to the military’s definition of “sedition.” But the question of whether it even could is a different story.

Indeed, there are two cases pending (with no connection to Flynn) in which retired service members are challenging whether they can constitutionally be court-martialed (as opposed to tried in civilian court) for post-retirement offenses. (Disclosure: I represent the retired service members in both cases.) And as distasteful as Flynn’s comments may have been, the reaction that they provoked helps to drive home why the answer ought to be “no.”

The Constitution gives Congress the power to “make rules for the government and regulation of the land and naval forces,” and exempts from the requirement of a grand jury indictment “cases arising in the land or naval forces.” The Supreme Court has read these two provisions to allow Congress to provide for military — rather than civilian — trials of any offense committed by active-duty service members. But the Court has been far more skeptical of courts-martial for those not on active duty.

Realistically, there’s no universe in which the U.S. Army is going to prosecute Flynn, even if his preposterous comments come close to the military’s definition of “sedition.”

Thus, in a series of cases in the 1950s and ’60s, the justices struck down Congress’s power to provide for courts-martial of 1) former service members for offenses committed on active duty; 2) dependents of service members for offenses committed while stationed with them overseas; and 3) civilian employees of the military. The through line connecting these rulings was the concern that “there are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III,” and that, as such, military jurisdiction should be limited to “the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.”

Retirees are a harder case. Unlike former service members, they remain subject to recall to active duty during an emergency, and many of them continue to receive a form of deferred compensation for the past service. Thus, ever since Congress created a retired list in 1861, it has provided that retirees can be tried by court-martial, even for post-retirement offenses. In all that time, though, prosecutions of retirees have been few and far between — and decisions upholding such jurisdiction have been rarer still. The last time that a civilian appellate court considered the issue was in 1964. And even the Court of Appeals for the Armed Forces — the highest court in the military justice system — hasn’t addressed the issue since 1989.

In the interim, the structure of the military has changed dramatically. Unlike in 1861, retirees today are virtually never subject to involuntary recall to active duty. Indeed, the government’s own regulations effectively disqualify over two-thirds of retirees from ever being recalled due to their age or disability. Perhaps reflecting that reality, retirees face no obligations to maintain any specific level of health, fitness, or other combat readiness. Indeed, while retired, the only legal obligation that retirees have is to keep the Department of Defense apprised as to their current address.

More significantly, the modern reserve system has supplanted the retired list as the principal supply of additional personnel to augment active-duty troops in a crisis. But members of the Individual Ready Reserve, unlike retirees, are not subject to court-martial for offenses they commit while inactive, even though, unlike retirees, they are subject to at least some training and readiness rules.

So long as military jurisdiction in this country is to be the exception, rather than the rule, there has to be some affirmative case for subjecting retired service members to court-martial.

Thus, any argument that it is necessary to subject the over 2 million retired service members to court-martial while retired in order to preserve their readiness runs headlong into the reality that it hasn’t proven necessary to subject those far more likely to be activated in an emergency to the same legal rules.

That’s not to say that retirees should be free from sanction; far from it. They do (and should) face civilian criminal trials for any offenses they commit while retired. And the Hiss Act allows the government to take away any and all financial benefits if and when they are convicted of specific criminal offenses (including seditious conspiracy). But so long as military jurisdiction in this country is to be the exception, rather than the rule, there has to be some affirmative case for subjecting retired service members to court-martial. And necessity just isn’t it.

That brings us back to Flynn. One of the central reasons some are arguing for his court-martial is because the military is able to prosecute speech that, in civilian courts, would almost certainly be constitutionally protected. In Parker v. Levy, for instance, the Supreme Court upheld the court-martial conviction of an Army doctor who had urged Black draftees to refuse to serve in Vietnam because of the discrimination that they faced there — explicitly acknowledging that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty.”

And courts-martial don’t just prosecute conduct that would be constitutionally protected outside of the military; they also follow numerous procedures that the Supreme Court has invalidated in civilian courts. Among many other examples, a conviction in a court-martial requires the concurrence of only three-fourths of the “members” (who serve as jurors) even though the Supreme Court held just last year that the constitutional right to a unanimous verdict in civilian courts is “fundamental.”

These differences are a bug of the military justice system, not a feature. And arguments that we should subject retirees like Flynn to court-martial because of their lesser substantive and procedural protections have things entirely backward. As Justice Felix Frankfurter wrote in 1950, “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” So too, here.