Appeals Court Likely to Stop Hegseth from Punishing Sen. Kelly over "Illegal Orders" Warning

Abuse of Power

May 9

NEWS & RESEARCH

A federal appeals court panel appears unlikely to permit Defense Secretary Pete Hegseth to punish Sen. Mark Kelly, (D-AZ), a retired Navy officer, for warning active-duty service members not to follow illegal orders. Hegseth sought to censure Kelly, reduce his rank and pension. The appeals court was reviewing a district court ruling that the Trump administration “trampled on Senator Kelly’s First Amendment freedoms and threatened the constitutional liberties of millions of military retirees.” President Trump had accused Kelly and five other Democratic lawmakers—all military or intelligence veterans—of "seditious behavior" punishable by death for releasing a video urging U.S. service members to uphold the Constitution and refuse "illegal orders." The video was released during the administration's deployment of National Guard troops in American cities. While the President and his allies characterized the message as an incitement to rebellion or "insurrection," the video merely restated established military doctrine regarding the duty to defy unlawful commands.

SOURCES: New York Times | Tucson.com

ANALYSIS & OPINION

In the Congress members’ video, they advised service members to uphold their oath to the Constitution by refusing "illegal orders," a statement experts like Eric R. Carpenter and Victor M. Hansen clarified is merely restating international law and existing military law rather than an attempt to overthrow the government. While the White House argued the video encouraged defiance of the commander-in-chief, legal scholars noted that sedition requires the use of force or violence and that the lawmakers' speech is protected under the First Amendment.

SOURCES: FactCheck.org| National Constitution Center