I realise there’s potentially lots of politics here, but I have what I think is a factual question.
What is the status of a retired general officer in the US military? Are they still on the rolls, so to speak, just retired?
If so, could Flynn be charged under military rules for advocating that the military assist the President in suspending the Constitution and implement martial law?
I saw this idea floated in a news op/ed somewhere, but never saw any discussion about it from the perspective of a legal question.
And the second part of the question - is there an offence under the MCJ which would cover advocating suspending the Constitution and imposing martial law by the military?
Note that in the two cases cited in the article @Elmer_J.Fudd linked, the retirees were also on Fleet Reserve status, and were accused of crimes which would also be criminal acts for a civilian. Still, if General Flynn is drawing retiree pay, he does seem to be bound by the UCMJ.
Note that, unless I missed something, General Flynn advocated that President Trump, not the military, declare martial law. That would seem to me to be political speech.
Political speech isn’t actually directly banned by the UCMJ. DoD and service regulations do forbid political activity while in uniform, or if the service member otherwise gives the impression that they are officially representing their service while engaging in the political activity.
It’s a well established tradition for many retired officers to speak on public affairs, including criticizing both politicians, and the political system. This could technically be considered a violation of UCMJ Article 88:
But, again, retired military officers criticizing these authorities is a well established tradition in the U.S. Indeed, many retired officers have made contemptuous public statements about President Trump, and none of them have been prosecuted.
By the way, here’s what the UCMJ has to say about sedition:
If he actually advocated for U.S. military personnel, on their own initiative, to suspend the Constitution and declare martial law, he’s guilty of sedition, and subject to prosecution under the UCMJ, and potentially subject to the death penalty. Advocating that the President do so is another matter.