“I mean, it should happen here”

Missy Ryan of The Washington Post writes here about whether retired Army Lieutenant General Michael T. Flynn will or should be prosecuted for suggesting that a Myanmar-type military coup would be a good idea. "[E]xperts said any case against Flynn would likely be questionable, especially since he quickly disavowed support for overthrowing the government." 

Really? Walking it back promptly may go to the question of remorse or the danger of recidivism, but it doesn't bear on the legal question of whether an offense was committed. Soliciting or advising sedition is, according to ¶ 6.c.(1) of the Manual for Courts-Martial, an "instantaneous offense."

The real drivers are whether General Flynn's comment meets the definition of any offense under the Uniform Code of Military Justice and whether (assuming the exercise of personal jurisdiction over a retiree is constitutional) the public interest is served by making him a martyr or offering him the soapbox of an Article 32 preliminary hearing or a trial. 

On the first of these questions, Article 94(2) provides that a person subject to the Code who, "with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition." General Flynn's comment seems not to satisfy the definition. Under Article 82(b)(2), however, soliciting or advising "another" to commit sedition is also an offense, even if sedition itself never occurs or is attempted. It is at best doubtful that his comment qualifies under this provision. Who was the "other"? Everyone in his audience? Paragraph 6.b.(1) of the Manual requires that the solicitee or advisee be "a certain person or persons" (emphasis added).

General Flynn's comment doesn't come close to violating Article 88, and any effort to shoehorn it into Article 134 would certainly as to clauses 1 and 2 and very likely as to clause 3 bump into the preemption doctrine. See Manual ¶ 91.c.(5)(a) & Discussion. "Novel" or bespoke specifications are clearly risky.

Full disclosure: the Editor is one of the appellee's counsel in a pending case at the U.S. Court of Appeals for the District of Columbia Circuit in which the government seeks reversal of Judge Richard J. Leon's decision that the exercise of court-martial jurisdiction over a member of the Fleet Marine Corps Reserve is unconstitutional.