Why the Pentagon isn’t heeding calls to prosecute Michael Flynn under military law

The military can recall retired personnel to try them for alleged crimes under the Uniform Code of Military Justice (UCMJ), even when those acts occur after retirement. But experts say it has done so only a few dozen times since the 19th century. In this instance, the Pentagon has shown little interest in pursuing such a move, in part because of the shaky legal foundations for such cases, several of which are being challenged in court. It would also draw the Biden administration back into the divisive politics surrounding the 2020 elections, which strained military norms and generated criticism of Pentagon leaders. “There’s political risk regardless of how you approach this, but when you are worried about the fact you might not have a slam dunk legal case, the decision to move forward would be largely a political one,” said Jim Golby, a retired Army strategist who teaches at the University of Texas.
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