WASHINGTON ― By admitting on Friday that he lied to the FBI while he was President Donald Trump’s national security adviser, Michael Flynn has further tarnished the reputation he built in the military, already marred by his behavior on the campaign trail, and made it almost impossible for him to hold high office again.
But he hasn’t lost his lieutenant general rank or the annual pension of likely more than $100,000 that he has been receiving since he retired in 2014 after 33 years in the military.
That’s because there is no obligation for Flynn to surrender those service-related privileges despite his new status as an admitted criminal, experts say.
“His retirement is protected” and his pension is intact, said Eugene Fidell, a lecturer at Yale Law School and former president of the National Institute of Military Justice.
Rachel VanLandingham, a Southwestern Law School professor and retired military lawyer, and Geoffrey Corn, a former Army officer and professor at South Texas College of Law in Houston, agreed with that assessment in separate emails to HuffPost.
“Flynn could commit murder today, and be convicted in federal court, and still retain his retired general status with pension,” VanLandingham wrote. She said the only situation in which he would lose his rank and pension is if the Army were to decide to court-martial him for his behavior as a retiree or for some misstep while he was on active duty whose statute of limitations has not yet run out, or if the Army decided to review his rank based on misconduct during his years in uniform.
“But it appears that Lieutenant General Flynn’s criminal conduct occurred after he retired from the Army,” she wrote.
This makes his situation different from that of one-time CIA Director David Petraeus, Corn noted. Petraeus was convicted for mishandling classified information while he was on active duty, so his rank could be adjusted. President Barack Obama’s Pentagon debated demoting Petraeus but decided not to following high-profile appeals from figures such as Sens. John McCain (R-Ariz.) and Jack Reed (D-R.I.).
“It is rare that a retirement grade determination is conducted for an officer previously retired from the U.S. armed forces,” the senators wrote in 2016.
It’s unlikely that any kind of criminal conviction would lead to an automatic loss of rank and pension, Corn wrote. Being proven guilty of any of a very small subset of national security crimes could lead to an immediate cut-off of pay, but those are not yet being discussed in regard to Flynn, VanLandingham said.
In some cases, prominent military officers caught up in legal trouble choose to sever their ties. In 1988, then-Lt. Col. Oliver North, an aide to President Ronald Reagan, resigned from the Marine Corps amid the Reagan administration’s Iran-Contra scandal.
“While on active duty, I am not fully free to speak out or to take other actions which may be necessary ... further silence is a disservice to me, my family and the brave people I have served,” North said, after he was named in an indictment and informed that his lawyer might seek subpoenas of high-ranking U.S. officials.
But Flynn is already retired ― as he cooperates with Mueller in the days ahead, he is not bound by the rules affecting Army officers currently serving with Trump as their commander in chief.
Still, some critics say it’s been clear for some time that Flynn no longer deserves the stature of a three-star general.
In April, George W. Bush White House ethics official Richard Painter told Business Insider that Trump should strip Flynn of his rank because he received a payment from the Russian government-funded news outlet RT in 2015 after being told by the military that he could not accept money from foreign governments in his retirement.
Further investigations outside the Mueller effort could still affect Flynn and his status.
“If you look at his plea, this does not preclude the Army from prosecuting if it were determined that some purpose would be served by that,” Fidell said. “The Army of course works for President Trump.”
And prosecution of military retirees is both internationally frowned upon ― as the U.S. is one of only a few developed countries that do it ― and relatively uncommon.
“While I think he is guilty of both conduct unbecoming an officer and gentlemen as well as service discrediting conduct, it’s incredibly rare for retirees to be court-martialed and even rarer for general officers ever to be held accountable for their criminal acts” VanLandingham wrote.
Flynn could end up with no jail time or spend up to six months in prison, according to the plea offer Mueller gave him. He will be fined between $500 and $9,500 ― though, as is common with plea deals, he can also ask the court to waive any fine.