Secretary of Defense Pete Hegseth’s crusade to punish Sen. Mark Kelly (D-AZ) for reminding military members they can refuse illegal orders is falling apart, and fast, legal experts say.
Controversy exploded in November when Kelly and five other military-veteran lawmakers released a 90-second video telling service members, “our laws are clear — you can refuse illegal orders. … You must refuse illegal orders.”
Though the video didn’t name Trump, the timing, which came amid threats toward Venezuela, sent a clear message.
Trump erupted over the rebuke, ranting on Truth Social, “SEDITIOUS BEHAVIOR FROM TRAITORS … punishable by DEATH!” He later added, “HANG THEM GEORGE WASHINGTON WOULD!” Hegseth dutifully followed with a formal letter of censure that could dock Kelly’s retirement pay and even trigger a court-martial.
Kelly fired back Monday with a federal lawsuit against Hegseth, Navy Secretary John Phelan, and both departments, claiming constitutional violations.
Author Fred Kaplan wrote Tuesday for Slate Hegseth faces a major problem: he likely can’t legally do any of it.
“Secretary of Defense Pete Hegseth’s campaign to punish Sen. Mark Kelly—a retired Navy captain—for urging members of the armed forces to disobey unlawful orders, is even more outlandish, and legally baseless, than it seems at first glance,” he said.
He called Trump’s sedition and treason accusations “preposterous,” as Kelly was merely reminding troops not to follow illegal orders. Even if they were, Eugene Fidell, a senior scholar specializing in military law at Yale Law School, noted that retired officers can’t be demoted for post-retirement speech.
Additionally, Hegseth lacks the authority to demote Kelly, as that power extends only to flag officers such as admirals and generals. Kelly’s Navy captain rank sits just below that threshold.
While Navy Secretary Phelan could theoretically attempt a demotion, Kelly would almost certainly win in federal court and make Pentagon leadership look petty in the process.
Kelly’s lawsuit appears destined for victory. Not so for Hegseth.
“Meanwhile, the crusade against Captain Kelly seems doomed to a proper flameout,” wrote Kaplan.
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