The Only Crime Specified In The Constitution

Article III, Section 3, Clause 1:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

This is not treason:

Anyone else remember the extended freak out by Flynn and Patrick Byrne over whether they discussed martial law in the Oval Office on Dec 18, 2020? https://t.co/9ViPrG2kN7

— Maggie Haberman (@maggieNYT) May 30, 2021

Although a lot of people on the intertoobs want to think it is.  In fact, the question of whether he can be court-martialed may well be a constitutional issue:

Yes, Flynn’s still subject to the Uniform Code of Military Justice as a retired Army officer. The constitutionality of jurisdiction over retirees for post-retirement offenses is something we’re currently challenging in the Court of Appeals for the Armed Forces & the D.C. Circuit. https://t.co/RQThYguIP1

— Steve Vladeck (@steve_vladeck) May 30, 2021

To be clear, I don't disagree with this sentiment:

This is wildly un-American. A standing army forcibly overturning the will of the people to take control of the country is literally what the founders feared. Flynn should move to Myanmar of he wants to live under a military dictatorship. https://t.co/ZzGNZKuwke

— Stephen Gutowski (@StephenGutowski) May 31, 2021

And let's be perfectly clear what Flynn is talking about:

Here’s what’s been happening in Myanmar that Flynn and his ilk want to happen here: the military overthrow of a democratic election based on false claims of fraud, with summary detention and murder of dissenters.

Those are the values of Trumpists.https://t.co/ZJCFbMuV29

— LolWhatInsurrectionHat (@Popehat) May 31, 2021

No doubt he shouldn't be allowed anything sharper than a rubber ball. No doubt Trumpism should be kick-stomped to the curb. But criminal action? Probably not; mostly because of this:

Yes, General Flynn’s call for a military coup is protected by the First Amendment, as it is not intended and likely to cause imminent lawless action. Arguments that the overthrow of the government is warranted, morally or politically justified, or desirable are protected.

— LolWhatInsurrectionHat (@Popehat) May 31, 2021

Well, that and Article III, Section 3, Clause 1. Really got to ignore all the bad Constitutional takes on Twitter.

Lagniappe: for those interested, you can go here and watch Popehat, a former Federal prosecutor, play with his food. It's no wonder the man has cats. Kindred souls, and all that.*

*Sorry; you could when I posted that.  Some clown challenged a former Federal prosecutor (Popehat) on the jurisdiction of the Supreme Court, alleging it only heard "Constitutional" issues, and not criminal matters.  He was quite insistent on his position, but apparently he was so shamed (finally) he just dropped his Twitter account entirely.  Maybe Bad Legal Takes archived it.

pic.twitter.com/81tYhcD4k5

— Bad Legal Takes (@BadLegalTakes) June 1, 2021

Well, they saved the pertinent part.