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Why the Pentagon isn’t heeding calls to prosecute Michael Flynn under military law

Michael Flynn, President Donald Trump’s first national security adviser, arrives at a protest of the outcome of the 2020 election on Dec. 12, 2020, in Washington, D. C.
Michael Flynn, President Donald Trump’s first national security adviser, arrives at a protest of the outcome of the 2020 election on Dec. 12, 2020, in Washington, D. C. (Tasos Katopodis/Getty Images)
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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.

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.

In this instance, the Pentagon has shown little interest in pursuing such a move, in part because of the shaky legal foundations for such cases, several of which are being challenged in court. It would also draw the Biden administration back into the divisive politics surrounding the 2020 elections, which strained military norms and generated criticism of Pentagon leaders.

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“There’s political risk regardless of how you approach this, but when you are worried about the fact you might not have a slam dunk legal case, the decision to move forward would be largely a political one,” said Jim Golby, a retired Army strategist who teaches at the University of Texas.

President Trump on Nov. 25 granted a full pardon to former national security adviser Michael Flynn, who pleaded guilty to lying to the FBI back in 2017. (Video: Reuters)

Asked this week whether the Pentagon was considering taking action against Flynn, Pentagon spokesman John Kirby said he was “not aware of any effort or interest in doing it in this case.”

“Without speaking to this specific case, retired officers can be brought back on to active duty to face a disciplinary charges if it’s warranted, it’s very, very rare,” he told reporters.

Flynn emerged as a vocal supporter of Trump in 2016. After being named national security adviser, he left the administration less than a month later amid controversy over his interactions with the Russian government. Flynn pleaded guilty to lying to the FBI about those contacts, but Trump later pardoned him.

He has become a leading voice in Trump’s attempt to overturn the results of President Biden’s electoral victory.

At a December rally in Washington more than a month after the election, he expressed certainty that Trump would remain in office and told the president’s supporters that “there has to be sacrifice” in the effort to ensure that outcome. A few days later, he suggested that Trump could declare martial law and order a “rerun” of the vote in key swing states.

His most recent comments drew condemnation from a wide array of politicians, including Rep. Liz Cheney (R-Wyo.), who tweeted that “no American should advocate or support the violent overthrow of the United States.”

Rep. Elaine Luria (D-Va.), a Navy veteran who serves on the House Armed Services Committee, said the comments constituted “conduct unbecoming an officer” and “border on sedition,” suggesting that Flynn might be tried for both under the UCMJ.

The Trump years brought acute challenges for military leaders, who were frequently blindsided by his policy pronouncements and often seemed unsure how to handle his flouting of traditional norms governing presidential interactions with the military.

As the 2020 electoral season stoked the partisan divide, Pentagon officials attempted, sometimes unsuccessfully, to remain on the sidelines of the political fray.

As the Pentagon attempts to return to business as usual, any attempted action against Flynn could thrust it back into a charged debate. Already, the Biden administration is trying to navigate criticism from the right that it is using the military to advance a left-wing social agenda.

Asked about Flynn’s comment, an army spokeswoman said the Army was “not investigating these statements further at this time.”

The Army also has not taken action in response to internal watchdog findings that Flynn potentially violated the emoluments clause by accepting money from Russian and Turkish interests. With few exceptions, U.S. officials, including retired service members, are prohibited from accepting money or gifts from foreign governments. Flynn retired from the Army in 2014.

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 General Flynn walked back his comments and the decisiveness and the clarity with which he did it.”

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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.

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.

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.”

Dan Lamothe contributed to this report.