# Could General Flynn be charged under military code for advocating suspension of the Constitution? **URL:** \ **Category:** Factual Questions\ **Created:** [December 21, 2020, 1:08am UTC](https://boards.straightdope.com/t/could-general-flynn-be-charged-under-military-code-for-advocating-suspension-of-the-constitution/928495 "2020-12-21T01:08:38Z")\ **Posts on this page:** 6\ **Page:** 1
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 21, 2020, 1:08am UTC](https://boards.straightdope.com/t/could-general-flynn-be-charged-under-military-code-for-advocating-suspension-of-the-constitution/928495/1 "2020-12-21T01:08:38Z")
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. Please, let’s keep this in GQ. ---
**Author:** ![Elmer\_J.Fudd](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/elmer_j.fudd/32/1211_2.png) [@Elmer\_J.Fudd](https://boards.straightdope.com/u/Elmer_J.Fudd)\ **Post date:** [December 21, 2020, 1:16am UTC](https://boards.straightdope.com/t/could-general-flynn-be-charged-under-military-code-for-advocating-suspension-of-the-constitution/928495/2 "2020-12-21T01:16:07Z")
Apparently, so. > **[Supreme Court: Military retirees can be court-martialed for crimes committed...](https://taskandpurpose.com/news/supreme-court-retirees/)** > > The U.S. Supreme Court has upheld the Defense Department's authority to prosecute retired service members for crimes they commit, even after retirement. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 21, 2020, 1:38am UTC](https://boards.straightdope.com/t/could-general-flynn-be-charged-under-military-code-for-advocating-suspension-of-the-constitution/928495/3 "2020-12-21T01:38:38Z")
That was quick! Thanks. Interesting read. 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? ---
**Author:** ![gdave](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gdave/32/3683_2.png) [@gdave](https://boards.straightdope.com/u/gdave)\ **Post date:** [December 21, 2020, 2:09am UTC](https://boards.straightdope.com/t/could-general-flynn-be-charged-under-military-code-for-advocating-suspension-of-the-constitution/928495/4 "2020-12-21T02:09:12Z")
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: > [@](#): > > _Article 88:_ Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct. 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: > [@](#): > > _Article 94_: > **(a)** Any person subject to this chapter who— > > **(1)** with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny; > > **(2)** with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition; > > **(3)** fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition. > > **(b)** A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct. 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. ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [December 21, 2020, 2:33am UTC](https://boards.straightdope.com/t/could-general-flynn-be-charged-under-military-code-for-advocating-suspension-of-the-constitution/928495/5 "2020-12-21T02:33:40Z")
> [@Northern\_Piper](#): > > MCJ The abbreviation is UCMJ, for Uniform Code of Military Justice. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [December 21, 2020, 2:40am UTC](https://boards.straightdope.com/t/could-general-flynn-be-charged-under-military-code-for-advocating-suspension-of-the-constitution/928495/6 "2020-12-21T02:40:35Z")
Thank you.