treason, sedition

This is good, except that as one who several times took the oath swearing to protect and defend the Constitution, I disagree with Turley on one thing: free speech rights acknowledged, as from 6 January 2021, it is time for vigorous prosecution for sedition.

Below is my column in USA Today on the disturbing comments of former National Security Adviser Michael Flynn in favor of a military coup. He later insisted that he was misquoted but the videotape confirms that he was for a military coup before he was against it last week. It is certainly positive to see Flynn deny support for a military coup, but the incident is the latest example of our growing addiction to rage — and the loss of our common constitutional faith.

Here is the column:

Gen. Michael Flynn appears to be man adrift. Flynn was pummeled by prosecutors to the point of bankruptcy and subjected to serious errors in prosecutorial and judicial misconduct for years. Despite my criticism of his prosecution, however, some of us noticed a rise of unhinged and undemocratic rhetoric from the former national security adviser.

Now Flynn appears to be endorsing an actual military coup after comments at an event held in Dallas. When prompted by an audience member, Flynn declared that we should have a military coup in this country like the one in Myanmar. The comment was a disgrace to all of the men or women who served with Flynn. It is particularly disgusting on the Memorial Day weekend when we honor all those who gave their lives for our country. He later effectively retracted his statement but the damage was done.

Military can threaten constitutional governance

During a question-and-answer session on Sunday, an audience member asked Flynn, while mispronouncing the Southeast Asian nation’s name: “I want to know why what happened in Myanmar can’t happen here?”

Flynn responded, “No reason, I mean, it should happen here. No reason. That’s right.” It was stated without a hint of sarcasm or poor humor. It was a matter-of-fact declaration that severed any connections of Flynn to our Constitution values or traditions.

As a retired Army lieutenant general, Flynn once took an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” I have always noted that the oath is to the Constitution itself, not a general reference to the country. This country is defined by our Constitution, including both its representative democratic process and its civilian leadership.

Myanmar is a vivid and brutal example of the costs of living in a nation without a faithful and loyal military dedicated to a constitutional process. Hundreds were killed and President Win Myint and Aung San Suu Kyi were arrested. Thousands of citizens have taken to the streets to protest and resist the military rule.

The Founding Fathers were so distrustful of military interference with civilian rule that many opposed a standing army. Even James Madison raised the concern of how a military can a threat to a constitutional system of governance:

“In time of actual war, great discretionary powers are constantly given to the Executive Magistrate. Constant apprehension of War, has the same tendency to render the head too large for the body. A standing military force, with an overgrown Executive, will not long be safe companions to liberty. The means of defense against foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.”

As discussed in my prior writings on the United States military and its history, the initially partisan military leadership after the revolution soon adopted a core adherence to a professional, apolitical tradition that continues to this day.

Relatively few military officers questioned or challenged civilian authority in our history. Those who did, like General Douglas MacArthur during the Korean War, were quickly and correctly sent into ignoble retirement.

Flynn later backtracked and declared “Let me be VERY CLEAR – There is NO reason whatsoever for any coup in America, and I do not and have not at any time called for any action of that sort.” He then appears to be blaming the media for “manipulating” his words as a “lively conference.” That is not true. I watched the video and he matter-of-factly endorses the idea of a coup.

Rage and faith in the Constitution

For those who love our Constitution and our country, the statement of Gen. Flynn could not be more offensive or grotesque. We have our flaws and our imperfections. However, the thing that has sustained up for over two centuries is our Constitution. Despite wars and every type of national trauma, we are still here. Our political differences have never become so great as to shake our common article of faith in our Constitution. Of course, it takes a leap of faith by every citizen to remain constitutionally loyal even when you have not prevailed politically. Flynn previously appeared to call for martial law to keep Trump in office. Even with his later backtracking on the call for a coup, Flynn has clearly lost the article of faith that binds us to each other. Instead, he appears adrift in the type of floating rage of the QAnon realm.

I have long opposed the use of sedition laws to punish figures like Flynn for making such statements (including recent efforts to return to sedition prosecutions). As a free speech advocate, I oppose such criminalization of viewpoints. However, we should all (including former President Donald Trump) condemn Flynn for this public statement even if we disagreed with elements of his prosecution. He is a man who lost that constitutional faith, regardless of his later effort to retract his statement. It is like expressing approval of infanticide before reaffirming your love for babies. The initial comment reflects something truly unnerving. I truly pity him for that loss. It leaves him with little but rage, which can become its own type of faith. Indeed, we live at a time when people are addicted to rage. Flynn is now is the face of that addiction.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

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