The plight of Michael Flynn

OPINION:

Last week we heard cruel and unusual words hurled at Lt. Gen. Michael Flynn by U.S. District Judge Emmet Sullivan, the official supposedly charged with administering justice. According to the Associated Press, Judge Sullivan said:

“Arguably you sold your country out I can’t hide my disgust, my disdain.” In open court, the judge even asked prosecutors if Russian interference in the 2016 elections might have been considered treason, later clarifying that he wasn’t accusing the general of being a traitor and putting off sentencing until next year.

My immediate reaction to Judge Sullivan’s words were forbidden rejoinders you should never say or even think about a federal judge: That he is in no way qualified to sit in judgment of Michael Flynn, a man whose service to his country far exceeds his own; that whatever mistakes the general may have made are clearly exceeded by prosecutorial zeal and even misconduct; and that Emmet Sullivan should not even be a federal judge if he cannot distinguish treason from beanbag.

If you too have forgotten a familiar point once taught in every American secondary school, the U.S. Constitution clarifies (in Article 3, Section 3) that “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them aid and comfort.”

Judge Sullivan, those restrictions were written by men who had worn the uniform of their new country when few reasonable people thought they had any chance of winning. Had the British prevailed through their overwhelming military power, those men would have stood accused of treason against king and country.Hence the restrictive language of Article III because our Founders remembered what you plainly do not. That the ultimate guarantor of our liberties is not a federal judge and certainly not a prosecutor but rather the American soldier on the ground with a rifle.

Service to country, however brave or distinguished, can never exempt anyone from the ordinary duty of the citizen to live within the framework of our laws and customs. Sadly, those responsibilities have become more odious with every law passed by Congress, interpreted by regulators, scrutinized by judges and argued over by lawyers, interminably at every point.

It has now become a cliche that we have far too many laws and lawyers but very little justice. A congressional advisory panel I worked on back in the 1990s found that the corpus of defense procurement laws had reached the astounding total of 800. How could you ever get out of bed in the morning without violating the language, spirit, intent or the regulatory burden of at least one of them?

Michael Flynn is a compelling example of why Montesquieu wrote in “The Spirit of the Laws” that, “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.” Although written in the 18th century, his words apply especially well at the end of 2018 to pompous, strutting characters like James Comey, Andrew McCabe and (most of all) Peter Strzok.

As Americans have watched their appalling antics over the last two years — from Mr. Comey’s gratuitous exoneration of Hillary Clinton to Mr. Strzok’s infamous texting with his toothy paramour — how can any reasonable doubt that Montesquieu’s warning is still timely?

Is it not enough that Michael Flynn has paid for any wrongdoing with public disgrace and bankruptcy? Beset everywhere by demonstrators who ignore his decades of service and wield disgraceful placards accusing him of being “Putin’s Proxy?” Ironically, Michael Flynn was the best military intelligence officer of his generation, trained to counter the KGB and the GRU when both were backed by the full weight of Soviet power. But he came to prominence only after 9/11, when ordinary Americans soon returned to the shopping malls and the voluptuous pursuit of peacetime pleasures.

Instead, Michael Flynn went to war in the hellholes of Iraq and Afghanistan. He faced not only murderous jihadis like Abu Musab al-Zarqawi but also the stand-pat barons of the U.S. intelligence hierarchies — secure in their well-appointed cocoons far from the combat zone. Together with his foxhole partner, Gen. Stan McChrystal, Michael Flynn demanded that the bureaucrats support the warfighter, driving his intelligence officers to victory by out-thinking their insurgent adversaries.

Seeing him now, facing the tyrannies of a thoroughly corrupt system of jurisprudence, it reminded me of how Oliver Wendell Holmes once described the battered warship known as The Constitution:

“No more shall feel the victor’s tread,

“Or know the conquered knee;

“The harpies of the shore shall pluck

“The eagle of the sea!”

• Ken Allard, a retired U.S. Army colonel, is a military analyst and author on national security issues.