Milley Advised Against Court-Martialing Flynn and Retired Generals Critical of Trump, Jan. 6 Testimony Reveals

Army Gen. Mark A. Milley, chairman, Joint Chiefs of Staff.
Army Gen. Mark A. Milley, chairman, Joint Chiefs of Staff provides testimony at a House Armed Services Committee hearing on ending the U.S. military mission in Afghanistan, Washington, D.C., Sept. 29, 2021. (DoD photo by Chad J. McNeeley)

The military's top general recommended against recalling retired generals to active duty in order to court-martial them in testimony to the House committee that investigated the Jan. 6, 2021, attack on the U.S. Capitol.

In a closed-door session in November 2021, Chairman of the Joint Chiefs Gen. Mark Milley was asked by then-Rep. Elaine Luria, D-Va., about stripping retirement benefits from retired Lt. Gen. Mike Flynn, who advocated for the military to help "rerun" the 2020 election after former President Donald Trump lost reelection, according to a transcript of the testimony released by the committee this week.

In response, Milley said the Trump administration had wanted to recall and court-martial retired generals who were critical of Trump and that he recommended against that at the time and would make the same recommendation about Flynn.

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"Mike Flynn is saying things and doing things that I absolutely fundamentally disagree with on so many levels. Bringing him back on active duty to court-martial him and subject him to crimes based on the Uniform Code of Military Justice is a giant step. I'm not saying it can't be done or shouldn't be done. I'm just saying that that would be a presidential decision," Milley said.

"Currently, and my advice to you as a member of Congress, or if the president were to ask me, I would say: Not yet, no. I don't think it rises to that level," he added. "I think that's a very serious thing, though, and it further politicizes. And I'm really concerned about politicizing the military."

Milley's 302-page transcript was part of a tranche of thousands of pages of underlying evidence the House Select Committee to Investigate the January 6th Attack on the United States Capitol released before it officially shut down Tuesday with the end of the previous congressional session.

In its final report, the committee found that no one at the Pentagon deliberately delayed the National Guard's deployment to the Capitol after it was breached by Trump supporters. To reach that conclusion, investigators interviewed more than a dozen Pentagon and military officials past and present, mostly about the events of Jan. 6 and how the Pentagon's response to racial justice protests in summer 2020 informed their reaction that day, but also about the waning days of the Trump administration more broadly.

The idea of recalling Flynn to active duty to court-martial him or take other punitive action such as cutting his pension has been periodically raised by pundits.

In his interview with the Jan. 6 committee, Milley said the idea of recalling retired officers back to active duty to be court-martialed was raised by the Trump administration -- not for Flynn, but for officers criticizing Trump.

"There was a couple of editorials written by retired flag officers that you would recognize their names that were very critical of then-President Trump, highly critical of President Trump," Milley said. "And there was actually discussions with me: Bring him back on active duty, court-martial him, you know, make him walk the plank sort of thing, right? I advised them not to do that, because that would further politicize, in my personal view. And I said, please give me a chance to calm the waters a little bit."

Milley framed the idea of recalling retired officers around growing politicization of the military and opined at length about his concern that the issue has been made worse by the actions of both politicians and retired officers.

Milley cited several incidents in recent years, including Flynn speaking at the Republican National Convention and retired Gen. John Allen at the Democratic National Convention in 2016; Trump signing his Muslim travel ban at the Pentagon; Trump intervening in the punishment of former Navy SEAL Eddie Gallagher after his court-martial conviction; and Oklahoma Gov. Kevin Stitt firing the head of the Oklahoma National Guard for following Defense Secretary Lloyd Austin's COVID-19 vaccination mandate.

Milley also decried critics who have made him a "lightning rod for politicization of the military," saying he and Austin are "constantly strung out" by conservative lawmakers and media that also "smear" other military leaders.

"I think it's fundamental to the health of the republic that we have an apolitical military," Milley said. "And apolitical means nonpartisan, neither Democrat nor Republican, and we execute the lawful orders of the civilian leadership that's appointed over us. The key is 'lawful' orders, and therein lie some judgment calls."

Milley himself has been accused of contributing to the politicization of the military by joining Trump on his infamous walk across Lafayette Square outside the White House after law enforcement forcibly cleared the area of racial justice protesters -- a point raised by Rep. Adam Schiff, D-Calif., during the committee interview.

Milley previously apologized for his participation in the incident, and he said he agreed when Schiff called Milley's actions that day "a serious body blow" to the military's apolitical image.

The chairman said Flynn was a "high-quality intelligence officer who served his country honorably and served it well in peace and war" when he was in the military but demurred on his opinion of Flynn now.

"The Michael Flynn that I see? I'll just reserve comment," Milley said. "But I can tell you that comments like what he said, I think those comments are absolutely fundamentally wrong, and they run at cross-purposes to the oath of office about protecting and defending the Constitution. The United States military doesn't go out to polling stations and start counting votes. We don't do that, period."

-- Rebecca Kheel can be reached at Follow her on Twitter @reporterkheel.

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