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."
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