Former WH ethics lawyer: Flynn should be court-martialed

Analysis by Zachary B. Wolf, CNN

The insurrection is far from over.

In the same week, the sitting US President warned that US democracy is in peril, a group of scholars said the American experiment could fail and a retired US general — who served, briefly, as national security adviser — seemed to endorse a military coup.

It’s hard to decide when to take this stuff seriously. It’s gotten harder to shake off since January 6, when the attack on Congress, the seat of the legislative branch, was met with a distinct lack of action by now-former President Donald Trump, then the head of the executive branch.

On the one hand, the retired general — that’s Michael Flynn — is disgraced in the eyes of his former colleagues, was prosecuted on charges of lying and foreign lobbying and then pardoned by Trump. He appeared this past weekend at a fringe conspiracy theory conference and said there’s no reason what’s happening in Myanmar (a violent coup by the country’s military) shouldn’t happen in the US.

“No reason, I mean, it should happen here. No reason. That’s right,” Flynn responded to a questioner, who was identified as a former US Marine.

There is no coup in the US. It’s clear the US military has no interest in overthrowing the government.

A message posted to a Parler account used by Flynn on Monday, however, claimed Flynn’s words had been twisted.

“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 said. Read more from CNN’s Donie O’Sullivan.

This is not an isolated idea. Flynn is the same person who, along with his attorney Sidney Powell, was in the Oval Office in December suggesting Trump invoke martial law, according to CNN’s reporting at the time.

At the same conference this weekend, he and Powell suggested Trump could just be reinstated. Here’s a fact check on that from CNN’s Tara Subramaniam.

A coup after an election, actually. What’s happening in Myanmar wasn’t just any coup; the military seized control of the country after the election in November. QAnon extremists have been fixated on it.

When O’Sullivan talked to Trump die-hards, Myanmar came up repeatedly.

So is it sedition? Richard Painter, the White House ethics lawyer under President George W. Bush, now a Democrat, argued Monday on CNN that Flynn should be prosecuted for sedition.

I actually bookmarked the law dealing with sedition and treason after the insurrection at the US Capitol (none of those rioters have yet been charged with any such crime despite their effort to stop the counting of Electoral College votes).

Here are the definitions of some possible subversive activities in US law (or read them for yourself here):

• Treason: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”
• Rebellion or insurrection: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
• Seditious conspiracy: “If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”

We won’t include the entire thing here since it is much longer, but there’s also “advocating overthrow of government.”

Painter argues that Flynn, as a retired general, is held to a higher bar under military law. If there were ever a person to test a sedition case out on, it might be Flynn. The judge who oversaw Flynn’s plea deal with the Mueller probe actually wondered if prosecutors could have charged him with treason back then.

Certainly it might be hard to make the case for treason or sedition in court since Flynn has apparently walked his bold pronouncements back.

The real threat could come later. It’s not the retired general seeming to call for a coup that is the greatest threat to democracy in the US.

It’s also not that Republicans in Arizona and Georgia are still trying to selectively audit their states’ election results months after the elections ended and a shocking number of Republican voters question the legitimacy of Biden’s win.

A large group of academics — “scholars of democracy” — published a “statement of concern” Tuesday about the “recent deterioration of US elections and liberal democracy.”

To them, it is the raft of restrictive voting laws being passed in key states by Republican legislatures around the country that threatens democracy.

Democrats in Texas delayed but did not yet defeat that state’s effort, which along with similar laws in Georgia, Arizona and elsewhere could cut down on the number of votes cast in 2022.

“Collectively, these initiatives are transforming several states into political systems that no longer meet the minimum conditions for free and fair elections. Hence, our entire democracy is now at risk,” write the experts, including Francis Fukuyama, the Stanford professor who is famous for arguing at the end of the Cold War that liberal democracy had essentially won the battle of ideas.

The scholars put this moment in dark terms.

“When democracy breaks down, it typically takes many years, often decades, to reverse the downward spiral. In the process, violence and corruption typically flourish, and talent and wealth flee to more stable countries, undermining national prosperity. It is not just our venerated institutions and norms that are at risk — it is our future national standing, strength, and ability to compete globally.”

Their No. 1 call is for lawmakers to suspend the filibuster, if necessary, to pass a nationwide voting standard.

And this is where we come back to Flynn, who today is on the fringe. But his seeming call to overturn the election sounds a lot like their warning.

“In future elections, these laws politicizing the administration and certification of elections could enable some state legislatures or partisan election officials to do what they failed to do in 2020: reverse the outcome of a free and fair election. Further, these laws could entrench extended minority rule, violating the basic and longstanding democratic principle that parties that get the most votes should win elections.”

Their warnings were more specific, but in line with Biden’s comments Monday during a speech at Arlington National Cemetery commemorating Memorial Day, which is in line with his large presidential theme that the US is a democracy in an ideological struggle with autocratic countries like China and Russia.

“Democracy is more than a form of government. It’s a way of being; it’s a way of seeing the world. Democracy means the rule of the people — the rule of the people. Not the rule of monarchs, not the rule of the moneyed, not the rule of the mighty — literally, the rule of the people.”

He added, “Democracy itself is in peril, here at home and around the world.”