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).
Some Legal and Constitutional Reflections
Notwithstanding the somewhat light-hearted tone of the above, it may strike you that the events described are not remotely amusing. To the contrary, they mark a disturbing continuation of our journey from constitutional republic to idiocracy to tinpot dictatorship. These are the kinds of things that happen in Russia, except I doubt Putin would be as open about targeting his political opponents as Trump.
It should go without saying (but I will say it anyway) that it makes no difference whether you like or dislike the Democratic lawmakers involved here or whether you thoroughly approve of the video in question or think it reflects terribly poor judgment. An administration that brings legally baseless charges against political opponents is extremely dangerous, and its willingness to bring such charges against members of Congress undermines the functioning of our system of government, as Judge Leon noted. And if you think that this will only happen to members you dislike, or as payback for actions of which you disapprove, you are not paying attention.
It may be less obvious that this is true even if the charges were not legally baseless. I have no doubt that both the administrative proceeding against Senator Kelly and the criminal indictments rejected by the grand jury were without legal foundation, but I also have little doubt that the administration could have found legally plausible charges if it looked hard enough. I don’t mean legally plausible charges related to the video, but some legally plausible violation of federal criminal law related to their tax returns, or their mortgage applications, or many other areas. It simply is not that difficult for a federal prosecutor to find some technical violation of federal law if she has enough resources and motivation to find it.
This was arguably a serious problem even in the before times, but it is a much greater problem now that the internal checks on executive action have been almost entirely removed by the advent of the unitary executive. If the president wants to intimidate or punish anyone he pleases, there is little to stop him. Norms that provided guardrails, such as limitations on communications between the White House and the Justice Department regarding prosecutorial decisions, have fallen away. Structural checks, like independent inspectors general, are largely inoperative. Not only does the president have the legal authority to fire almost every executive officer for any reason (with the “almost” part hanging on a thread at the Supreme Court), but there is no longer an expectation that he needs a good reason, or any reason, or even a non-corrupt reason, for doing so. In effect, executive officers of the United States are now expected to be the president’s henchmen (or henchwomen) and for the most part they live up to that expectation.
We still have an independent judiciary, of course, but that branch’s ability to check executive abuse of authority is limited and spotty. Its power is perhaps strongest in the area of criminal law, but even there it can do little to stop abusive investigations (and sometimes does not even do what it can). Moreover, although the judiciary can usually stop vindictive prosecutions at some stage, this has little deterrent effect. If the executive is indifferent to how many cases it loses, there is little downside to bringing as many marginal, pretextual or downright frivolous actions as it has resources for. Meanwhile, its targets are forced to spend time and money in defending themselves, and they suffer the psychological effect of potential penalties (however remote). For them the process is the punishment. No wonder that so many citizens are now afraid of official reprisals from the federal government. See, e.g., slip op. at 24 (citing an amicus brief that “many veterans are today ‘declining’ to ‘participate in public debate on important and contested issues’ out of fear of ‘official reprisal’”). This is to say nothing of areas outside of the criminal law, like government employment, contracts and grants, where judicial protections are slim to none.
This brings us to the remaining branch of government, the Congress of the United States (sometimes now called the Duma). We do not need to rehash here the many criticisms of the legislative branch and its fecklessness, particularly with regard to conducting oversight of the executive branch. Suffice to say that these problems are exacerbated when the executive can target troublesome legislators, not just with mean tweets and threats of primary challenges, but with retaliatory acts such as criminal investigations/prosecutions or administrative actions.
The framers were sufficiently concerned about this issue that they wrote two separate constitutional provisions to address it. First, the Speech or Debate Clause provides that senators and representatives “shall not be questioned in any other Place” for “any Speech or Debate in either House.” U.S. const., art. I, §6, cl. 1. This provision was designed to prevent exactly what happened to Senator Kelly and his colleagues. See United States v. Johnson, 383 U.S. 169, 182 (1966) (“There is little doubt that the instigation of criminal charges against critical or disfavored legislators by the executive in a judicial forum was the chief fear prompting the long struggle for parliamentary privilege in England and, in the context of the American system of separation of powers, is the predominate thrust of the Speech or Debate Clause.”).
Second, the Incompatible Offices Clause provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” U.S. const., art. I, §6, cl. 2. The purpose of this clause is to prevent the executive from exercising influence or control over members of Congress in ways that would threaten their independence. As we have discussed before, the question of whether the clause should or does apply to members who serve in the reserves has arisen from time to time. As far as I know, however, no one has suggested it applies to retired military officers, even though Senator Kelly’s case shows that this relationship can also give an unscrupulous executive leverage over members. No doubt it would be considered harsh and unfair to require veterans to relinquish their retirement pay as a condition of serving in Congress.
Nor does the Speech or Debate Clause provide adequate protection. As interpreted by the Supreme Court, it does not apply to speech outside of formal legislative proceedings. See, e.g., Hutchinson v. Proxmire, 443 U.S. 111 (1979); Doe v. McMillan, 412 U.S. 306 (1973). This precedent has been criticized as undervaluing the importance of congressional communications with constituents and the general public. See Josh Chafetz, Democracy’s Privileged Few 110 (2007) (arguing that this precedent “give[s] short shrift to communications between Members and the public”). But even if the Court were to expand its concept of legislative speech, this would not do much to solve the problem. As already noted, if the executive branch is willing to look hard enough, it can find plausible justifications for criminal proceedings against members that are completely outside the legislative sphere. Of course, individual prosecutors may still sometimes draw the line as to how far they are willing to go in such pretextual prosecutions. But the chilling effect remains, even if the actual prosecution is not brought.
So what is to be done? As Andy McCarthy observes, “it was intolerable — impeachable — for the president to unleash the government’s law-enforcement apparatus against members of Congress in the absence of some patent crime [and] [h]ere, there was no crime at all.” But impeachment is no longer a serious threat against this (or perhaps any) president. In any event, he has committed so many impeachable offenses that there is no real downside to committing more. It would be perhaps more effective to impeach the officers directly responsible for the weaponization of the legal system against Kelly and his colleagues. This would include Hegseth, the secretary of the navy, the attorney general, the U.S. attorney for the District of Columbia, and others. A successful impeachment and conviction of these officials, while a long shot, might go some way toward reestablishing some red lines in the operation of the executive branch.
Bob Bauer proposes a statute that would establish a special counsel with sole jurisdiction to investigate and prosecute members of Congress. The law would be modeled on the old independent counsel statute, such that “if an administration is poised to investigate a member, the attorney general would be required to apply to a division of the U.S. Court of Appeals for the District of Columbia Circuit for the appointment of a special counsel.” While such a statutory scheme might seem to be at odds with the unitary executive theory adopted by the current Court, Bauer points out that the Court’s decision in Morrison v. Olson, 487 U.S. 654 (1988), which upheld the independent counsel statute, has never been overruled. Moreover, he notes that much of the skepticism of Morrison flows from Justice Scalia’s powerful dissent, which itself rests on Scalia’s incisive criticism of the law as facilitating “partisan weaponization” of the justice system. Scalia failed to envision, however, “the arrival of the unitary, weaponizing executive.” Thus, the Court may want to recalibrate its assumptions about the advantages of the unitary executive.
I certainly agree with Bauer’s observations regarding Scalia’s Morrison dissent, which track with my own. But I am not sure that a statute such as Bauer proposes is necessary. It would be sufficient to centralize the investigation and prosecution of members of Congress in a single presidentially appointed and Senate confirmed office and then to provide that such cases could proceed only when the office is occupied by a Senate-confirmed officer. Of course, as long as the officer is considered an inferior officer, it should also be possible to have the courts appoint her rather than the president. In the event that this arrangement were held unconstitutional, the law could provide that the prosecution simply could not proceed until a constitutional mechanism were found.
The problem with both Bauer’s proposal and mine is that they require lawmaking which would be subject to presidential veto. It seems very unlikely, therefore, that needed reforms could be made during the term of the current president. Moreover, even if we envision a point where the Democrats control both houses of Congress and either control the presidency or are at such a late point in Trump’s term that he no longer would care about exercising his veto, I am not sure that the needed reforms would pass. The fact is that the congressional wings of both parties do not seem to be that interested in reducing presidential power in the abstract, or at least are less interested in reducing it than their presidential wings are interested in maintaining it. The very problem we are trying to solve, namely congressional fear of executive retribution or desire to obtain executive rewards (which, Bauer astutely notes, now includes the prospect of presidential pardons), prevents Congress from taking the necessary action to solve it.
In any event, a statutory solution to the narrow problem of prosecution of members of Congress is insufficient to address the problem posed by the unitary executive. Even if members of Congress were protected from direct prosecution, what about their staffs? Their families, friends, and political supporters? The fact is that a president with no checks on his power to prosecute anyone other than members of Congress, the power to distribute pardons like Oprah giving away cars, and virtually unlimited power over the regulatory, contracting and grantmaking authorities of the executive branch, is too powerful to be meaningfully restrained by Congress in its current state.
What we really need is a class of political actors with the power to initiate constitutional reform, but who are too numerous to be easily intimidated and enjoy the requisite independence from the Washington power structure. If only the framers had thought to provide for that.
Oh wait, they did.
Nice post for my birthday. Thanks!
You are welcome. Happy birthday!