Vladeck on Flynn's Myanmar Dreams

6/3/2021

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

"[C]ourts-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."

3 Comments

Joshua Kastenberg

6/5/2021 07:55:23 am

I think Professor Vladeck does a fine job in laying out an argument as to why no retiree should be held amenable to a court-martial including Michael Flynn. I appreciate the Frankfurter quote as well. He actually wrote this quote in a letter to Owen Roberts first, on another matter, but didn’t put it into the case. Yet, I think Frankfurter took a few departures from the Bill of Rights himself (Korematsu, Gobitis… etc). I digress because I’d like to point out a potential “straw-mane” in Steve’s argument that I have written about in one of his school’s upcoming law review articles.

The military prosecution in Flynn should – if it occurs – not be prosecuted on the ease of a court-martial vice a criminal trial. If it were to occur, it should because of a UCMJ violation that is strictly military in nature. I can think of three beyond sedition: Art. 133, Art. 88, and Art. 134 through the Assimilative Crimes provision (he may have violated several post-military rules against working in his field). The system was designed to prevent a Boulanger, a Salon a Bastien-Thierry, and most importantly in our modern times, a Ludendorff from helping to undermine the Republic. It may be that Professor Vladeck has overheard people talk about a court-martial being the best means to “get Flynn” because of the non-unanimous jury, but I suspect those same people haven’t thought about the fact that a court-martial of general officers might also acquit Flynn.

The second issue is Professor’s use of the “Hiss Act:” I have significant doubts about the constitutionality of that act today. When the act first came out, federal retirees were under the old system of direct pay. Today retirement pay is contributor. (CSRS v. FRS). There must be a considerable Takings Clause issue in the employment of this act, and, this act has never been tested in the courts. I think mention of the Hiss Act – a Cold War reaction to fears of communists in the government – is something of a cypher or a false reassurance that Flynn and other retirees who are alleged to have undermined the Republic can still be stripped of their retirements. This is why I stayed away from mentioning it in my amicus in support of Professor Vladeck’s client, Larrabbee or anywhere else.

But, Professor Vladeck is broadly and forcibly right on the overall retiree jurisdiction issue – it too is an unsustainable relic of the past for common non-military crimes at least. There are other means from assuring a ready military force – one that would have to exclude Flynn.

Philip D. Cave link

6/5/2021 11:59:12 am

I think Steve has the right of it as a big-picture observation on subjecting any retiree to court-martial where there is no actual impact on good order and or/a mission--although I suspect followers of Parker v. Levy would quibble with a connection and effects "test," if that test is what is to be advocated for.

As to Josh's boulangerie of objections, here too he raises legitimate concerns in balancing reactions to speech of retired officers. His arguments suggest that a metaphorical Bastien-Thiry like excecution is not how America contemplates free speech and thought no matter how much we destest the words. Shirley there are federal laws in place, well accepted by the public that could be used in the right circumstance and with cool reflection. Are we not seeing that in regard to the Putsch of the Sixth?

I hold no brief for the person Flynn has become. But I also am of the view that we should not be careless in thinking through the effects of holding one but not others accountable for disliked speech at court-martial.

(Disclaimer: I am a contributor to the NIMJ amicus in Larrabee, and of course a regular component retiree.)

6/5/2021 02:55:51 pm

Missy Ryan of The Washington Post writes here about whether retired Army Lieutenant General Michael T. Flynn will or should be prosecuted for suggesting that a Myanmar-type military coup would be a good idea. "[E]xperts said any case against Flynn would likely be questionable, especially since he quickly disavowed support for overthrowing the government."

Read more of the GMJR comment about the article and "case" here.

https://globalmjreform.blogspot.com/2021/06/i-mean-it-should-happen-here.html

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Vladeck on Flynn's Myanmar Dreams

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