Last month, Steve Vladeck, University of Texas law professor, filed a brief in federal court arguing that court-martialing retired military personnel is unconstitutional.
Michael Flynn was asked whether there could be a Myanmar military coup here in the United States, and perhaps reinstall Trump as President of the United States despite his loss to President Joseph Biden, Flynn replied “No reason. I mean, it should happen.”
Such a position would be unconstitutional and against his military oath. You cannot simultaneously support government overthrow and support the government at the same time.
Michael Flynn draws a military pension and enjoys other benefits, paid by the American taxpayers through the United States government. And, as a former military officer, he can be called back to serve at any point. Congress passed the Uniform Code of Military Justice in 1950, which says that retired military officers like Flynn are still subject to the code because they could be called into service in an emergency as part of the Fleet Marine Corps Reserve. Congress has the authority to pass these rules via the Constitution.
The federal government just filed a brief (source link) which states:
“Congress’s judgment that the Fleet Marine Corps Reserve is part of the armed forces was plainly reasonable given members’ military obligations and benefits. In particular, members can be recalled to active duty, face activity restrictions, have reporting obligations, may use their military titles and wear military uniforms, and receive retainer pay. Thus, contrary to Larrabee’s suggestion, Fleet Marine Corps Reserve members have military responsibilities and must follow military orders and regulations. Subjecting them to court-martial jurisdiction is also consistent with longstanding historical practice. Congress’s decision to exempt other service members from court-martial jurisdiction under certain conditions has no bearing on its power to make a different choice here.”
This matter is scheduled to be heard in the Autumn, 2021. From the position of the United States, it appears that they may proceed with a court-martial against Michael Flynn. And this is Michael Flynn’s fault, for thumbing his nose at the United States government and our democracy. The United States government cannot tolerate an officer of the military to go on tour, voicing his support for government overthrow.