Lieutenant General Flynn
Lieutenant General Flynn will likely not be called before a court-martial—based on the publicly available information. Military law expert Eugene Fidell cogently explains why: treason is prosecuted in federal court and the known facts do not support a sedition charge. And, creative attempts to charge an Article 134, UCMJ, violation, would cause a legal kerfuffle that would satisfy no-one.
Conversely, LTC Daniel Maurer and LTC Yevgeny Vindman, Army judge advocates, suggest a “clever lawyer” can get a conviction for making Disloyal Statements under Article 134, UCMJ.
Several legal doctrines familiar to trial lawyers would likely defeat the charge before trial began. And, despite the legal niceties, the political storm may make a court- martial ill-advised. Some say a court-martial could create an American Dreyfus—a martyr for others. If crimes have been committed let the Department of Justice and the appropriate United States Attorney make any prosecution decision.
In 1861, President Lincoln signed An Act providing for the Better Organization of the Miltary Establishment in which retirees became subject to court-martial. Since 1861, Congress has extended jurisdiction over almost all officer and almost all enlisted retirees. Section 8(14), Article I of the Constitution gives Congress broad powers over the discipline process. There is litigation ongoing in federal courts about the constitutionality of extending court-martial jurisdiction. The Court of Appeals for the Armed Forces has ruled in a number of cases to sustain jurisdiction. The Supreme Court has yet to say otherwise. [Act of August 3, 1861, ch. 42, 12 Stat. 287. Congress has since extended court-martial jurisdiction for almost all retirees; each category is now listed in Article 2, UCMJ. I have previously commented on the inability to court-martial a Reserve retiree.
Whether court-martial jurisdiction over retirees can be limited is being litigated federal courts. The Court of Appeals for the Armed Forces has turned back challenges to jurisdiction and the Supreme Court has yet to say Congress is prohibited from making one or more class of retirees subject to court-martial.
The President, the Secretary of Defense, and the Secretary of a Service can convene a court-martial, but has not done so since the President sent his brigadier general Judge Advocate General to court-martial.
The Service Secretary approves the retiree’s prosecution by a lower level general court-martial convening authority. Given Secretarial approval, the case proceeds like any court-martial. One wrinkle is that the retiree accused usually elects to appear in civilian clothes. Retirees are not recalled to active duty and it is their choice to appear in uniform or civilian clothes. LTG Grazioplene appeared in civilian clothes for his court-martial hearings. See, Todd South, Retired Army major general reduced to second lieutenant for sex crime conviction. Army Times, 6 June 2021 (with photo of MG Grazioplene at one of his court-martial hearings). His aborted court-martial to a civilian court prosecution. [[[The Court of Appeals for the Armed Forces ruled, in a different case, that the statute of limitations for rape was only five years, also preventing LTG Grazioplene’s court-martial. [See United States v. Mangahas, 78 M.J. 289 (C.A.A.F. 2019).
The retired military status is lost if, upon court-martial conviction, the sentence includes dismissal for an officer or punitive discharge for an enlisted person. The President also can ‘drop an officer from the rolls,’ which might apply when a retiree is sentenced to more than six months confinement at court-martial (or civilian court) but no a punitive discharge. A ‘dropping from the rolls’ causes forfeiture of future military pay. An officer sentenced to confinement would be sent to the U.S. Disciplinary Barracks, Fort Leavenworth. MG Grazioplene was recently “demoted” to second lieutenant but continues to receive retired pay at that grade and years of service. There are interesting and nuanced legal questions of whether he can now be dropped from the rolls since his civilian conviction and sentence to confinement.
Over the last years more retirees face the possibility of court-martial for conduct before or after retirement. Leaders are taking a special interest in those accused of sexual offenses. Also, “Among the many novel features of the 2016 presidential election campaign is the increasingly visible participation of former military officers in the political process.” [Rick Houghton, The Law of Retired Military Officers and Political Endorsements: A Primer. Lawfare, 3 October 2016. Many have called for their court-martial for the “offensive” words those retirees have uttered in political discourse.
The facts, the law, the administrative burdens, and occasionally the politics drive the decision to court-martial a retiree. The President, Secretary of Defense, and a Service Secretary can refer a case to court-martial. [Article 22(a)(1)(2)(4), UCMJ, 10 U.S.C. § 822(a)(1)(2)(4) [https://www.law.cornell.edu/uscode/text/10/822].] Usually the initial decision is made by the Service Secretary. Each Service has its own approach and a regulation on when to court-martial a retiree.
The Secretary of Defense tells us that the Service Secretaries may order a retiree to active duty to facilitate a court-martial. [Department of Defense Instruction 1352.1, sec. 3.3.b.(3).] The Air Force and Department of the Navy do not recall the retiree. The Army usually only recalls enlisted Soldiers.
The Army Regulation 27-10 lays out the process for requesting a retiree be court-martialed. [ The Department of the Navy requires specific approval from the Secretary. The facts, the law, the administrative burdens, and sometimes politics drive the decision to court-martial a retiree. The Army limits trial of retired Soldiers “unless extraordinary circumstances are present,” a somewhat vague definition. The Air Force limits retiree courts-martial to those whose “conduct clearly links them with the military or is adverse to a significant interest of the United States.” [AR 27-10, Legal Services: Military Justice, ¶5-4c.,; Manual of the Judge Advocate General of the Navy, JAGINST 5800.7G, ¶0123.]
Once Secretarial approval is given, the preferral and referral of charges and trial proceed similarly to that for an active duty member. One wrinkle is that the accused has the choice to appear in uniform or a suit. LTG Grazioplene wore a suit for his court-martial.
The retired military status is lost if, upon conviction, the sentence includes dismissal for an officer or punitive discharge for an enlisted person. Or, the President can ‘drop an officer from the rolls’ when sentenced to more than six months confinement at court-martial (or civilian court) but not a dismissal. When dropped from the rolls, all future military is forfeit. [See 37 U. S. C. § 803.] An officer goes to the U.S. Disciplinary Barracks, Fort Leavenworth, for confinement.
This year is the 70th anniversary of the UCMJ’s enactment, and we might focus on cases under the UCMJ. Admiral Hooper was the first retired senior officer to be court-martialed for post-retirement conduct—basically homosexual activty. He unsuccessfully appealed his conviction to the Court of Military Appeals and the Court of Federal Claims.
While some call for Flynn’s court-martial, others are in courts arguing that it is unconstitutional to court-martial some retirees. Litigants argue that Congress exceeds its authority to “Make Rules” for the court-martial of retirees. At least one federal district court has held the prosecution of a Fleet Marine Corps Reserve (FMCR) retiree is unconstitutional. The Larrabee case is now on appeal at the District of Columbia Circuit Court of Appeals. [Disclaimer, the writer is co-counsel for the National Institute of Military Justice appearing as amicus curiae.] Meanwhile, Dinger, [United States v. Dinger, 77 M.J. 447 (C.A.A.F. 2018)], also in the FMCR was dishonorably discharged after a court-martial conviction for crimes committed while retired. The U.S. Court of Appeals for the Armed Forces sustained his conviction and, specifically, his dishonorable discharge. The Supreme Court declined to hear his case. Another FMCR, Begani,recently decided by the CAAF found in favor of jurisdiction. Begani was a DoD contractor at Iwakuni when he committed misconduct for which he was court-martialed.
LTG Flynn may not be out of the woods yet; all we know about his activities comes from public sources. We do not know if an investigation is ongoing or what the Department of Justice, the Federal Bureau of Investigation, or any three-letter agency have yet to be made public. The laws affecting the surveillance of U.S. citizens are complex. The Department of Justice’s has a lengthy section in their “Justice Manual” on the uses of electronic surveillance for law enforcement purposes. Free speech is a fundamental American right, but there are times when our words may be a crime. As retirees, we should think, as if still in uniform, before speaking because some words can have adverse consequences for our retired status and that nice check each month.
If you are a retiree who is being investigated for any crime, feel free to reach out and get a consult from us as military defense lawyers experienced and knowledgeable about retiree prosecutions.