A few months ago a group of six Democratic members of Congress, including Senator Mark Kelly, released a video reminding members of the military that they have a duty to “refuse illegal orders.” The senators and representatives, each of whom has a military or intelligence background, did not identify any particular orders that should be disobeyed, but it was generally assumed that that they were referring to the Trump administration’s legally questionable Venezuelan boat strikes and possibly also the president’s actual or threatened deployment of regular military and National Guard forces in American cities.
The video was subject to reasonable criticism by non-insane people on the ground that it was pointless at best, as servicemembers are well-trained on their duty to disobey unlawful orders, and at worst disruptive to military cohesion and discipline. Among the less mentally balanced, however, the Democrats were labeled the “seditious six” and accused of a “direct attack on this republic.” The latter category included the commander in chief, who fired off the following social media post on November 20, 2025:
It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL. Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand – We won’t have a Country anymore!!! An example MUST BE SET.
In case this take was too nuanced, President Trump followed up with another post shortly thereafter: “SEDITIOUS BEHAVIOR, punishable by DEATH!”
By incredible coincidence, a few days after Trump declared these opposition lawmakers to be enemies of the state his administration announced that it was reviewing “serious allegations of misconduct” against Senator Kelly in his capacity as a retired naval captain. According to a social media post from the Department of “War” (not its actual name), “a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures.” It then explained:
This matter will be handled in compliance with military law, ensuring due process and impartiality. Further official comments will be limited, to preserve the integrity of the proceedings.
At this point you might be thinking that an investigation launched by the executive branch after the president has already publicly declared the guilt of the target doesn’t exactly scream “due process and impartiality,” but at least we can rely upon the military to conduct the actual investigation in a serious and professional manner, as well as to avoid inflammatory public comment, just as it promised to do. Right?
You poor naive sap. TWENTY-SEVEN minutes after the announcement of the investigation, the secretary of “war” reposted the announcement with his own commentary:
The video made by the “Seditious Six” was despicable, reckless, and false. Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of “good order and discipline.” Their foolish screed sows doubt and confusion — which only puts our warriors in danger.
He went on to explain that the investigation was only of Kelly because he alone of the “seditious six” remained subject to the Uniform Code of Military Justice. He closed by vowing that “Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately.”
This doesn’t seem all that impartial, to be honest. But wait, you say. That post wasn’t from the official X account of the secretary of “war.” It was from the personal X account of some guy named “Pete Hegseth.” So actually there was no violation of the promise to limit “official comments.” And the fact that Hegseth has a personal opinion about Kelly’s conduct should have no bearing on the “impartiality” and “due process” that Senator/Captain Kelly will receive. Right?
Good point! I jumped the gun in equating Pete Hegseth in his official capacity and Pete Hegseth in his personal capacity. The fact that Hegseth has prejudged Kelly’s guilt in his personal capacity says nothing about whether he can be impartial in his official capacity! Also, war is peace, freedom is slavery, and sycophancy is due process. With thinking like that, you could be the next White House press secretary! (Assuming you meet the physical requirements, of course).
Anyway, the “investigation” was conducted and a few weeks later the secretary, in his official capacity, announced the results. You will be shocked to find out that it did not go well for Kelly. After all that impartiality and due process, Secretary Hegseth (not to be confused with Pete Hegseth the rando with personal opinions) issued a letter of censure to Kelly “for conduct that I have determined to be prejudicial to good order and discipline in the Armed Forces of the United States, conduct which brings discredit upon the same and conduct unbecoming an officer.” In addition to issuing this formal censure, Hegseth stated:
I believe good cause exists to reopen the determination of your retired grade under the provisions of 10 U.S.C. §1370. Accordingly, I will direct the Secretary of the Navy to recommend whether a reduction in grade is appropriate in your case.
After receiving the Secretary of the Navy’s recommendation, I will determine if a reduction is warranted. Any reduction in retired grade would result in a corresponding reduction in retired pay.
The censure letter closes with the observation that “[y]our status as a sitting United States Senator does not exempt you from accountability for conduct that undermines good order and discipline in our Armed Forces.”
Personally, I was on pins and needles waiting to see what the impartial recommendation from the secretary of the navy would be. And what Secretary Hegseth would decide to do about what he had already described on X as “the totality of Captain (for now) Kelly’s reckless misconduct.”
Unfortunately, Kelly short-circuited all this due process by bringing suit in federal court against Secretary Hegseth, as well as the Department of Defense (the actual name of the department Hegseth leads), the secretary of the navy (who I will not name since he has recently had all the publicity he needs), and the Department of the Navy. Kelly asked for a temporary restraining order and preliminary injunction with regard to the administrative proceedings against him, alleging that they, among other things, violated the First Amendment, the Speech or Debate Clause, the separation of powers and his due process rights. The case was assigned to Judge Richard Leon, who in a January 2026 hearing expressed some skepticism about the legal and constitutional basis for the proceedings against Kelly but declined to rule immediately.
The Trump administration then doubled down (another shock). Not content with administrative proceedings against Kelly based on the (highly debatable) legal theory that his status as a retired military officer restricts his First Amendment rights to criticize the government, it sought to criminally indict Kelly and the other Democratic senators and representatives on charges related to the making of the video. It has been reported that the proposed indictments, which have not been made public, charged the defendants with seditious conspiracy. In any event, notwithstanding the (mostly deserved) reputation of grand juries as rubber stamps for the prosecution, on Tuesday, February 10, the federal grand jury to which these charges were presented refused to issue any indictments. (It has been reported that this decision was unanimous).
Two days later (i.e., yesterday) Judge Leon ruled that Kelly was likely to succeed on the merits of his First Amendment claim (therefore rendering it unnecessary to consider the remaining claims) and issued a preliminary injunction in his favor. In a Leonesque opinion filled with too many exclamation marks, the court blasted the government’s actions as textbook retaliation for protected political speech. The court rejected the government’s argument that retired military officers were entitled to reduced First Amendment rights, and it found that argument particularly troubling in the case of a sitting senator. As Leon puts it, “if legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the Executive, our representative system of Government cannot function!” Slip op. at 22 (emphasis in original). The judge closed with the (forlorn) hope that his opinion will enable Secretary Hegseth and his fellow defendants to “more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!” Slip op. at 29 (emphasis in original) (warned you about the exclamation marks).
One point made by the court is noteworthy. It states that “Defendants rest their entire First Amendment defense on the argument that the more limited First Amendment protection for active-duty members of the military extends to a retired naval captain.” Slip op. at 19 (emphasis in original). If this accurately characterizes the government’s position, it suggests that even under the government’s own theory there could not possibly be a constitutional basis for indicting the lawmakers who were not retired military officers. And even as to Kelly himself, the government’s position would not seem to provide a basis for criminal, as opposed to administrative, action. See Slip op. at 23 n.5 (noting that the government does not press an argument that Kelly’s speech falls into an unprotected category like incitement). Continue reading “The Unitary Executive is Watching You”