Nov.25

electoral-vote.com

Dem 47

   

GOP 53

...Try, Try Again?

Whatever happens with Letitia James and James Comey, the Trump administration has a new target in its sights. In timing that presumably wasn't coincidental, as it came within minutes of the news of the James/Comey dismissals, the Department of Defense posted a message to eX-Twitter announcing that it's launching an investigation into Sen. Mark Kelly (D-AZ), in response to the video that he and five other Democratic members of Congress recorded and released this week:

The Department of War has received serious allegations of misconduct against Captain Mark Kelly, USN (Ret.). In accordance with the Uniform Code of Military Justice, 10 U.S.C. § 688, and other applicable regulations, 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. 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.

The Department of War reminds all individuals that military retirees remain subject to the UCMJ for applicable offenses, and federal laws such as 18 U.S.C. § 2387 prohibit actions intended to interfere with the loyalty, morale, or good order and discipline of the armed forces. Any violations will be addressed through appropriate legal channels.

All servicemembers are reminded that they have a legal obligation under the UCMJ to obey lawful orders and that orders are presumed to be lawful. A servicemember's personal philosophy does not justify or excuse the disobedience of an otherwise lawful order.

Although this was issued in the name of the entire Department, it can hardly be doubted that this came directly from Secretary Pete Hegseth. Whether Hegseth was undertaking one of his own personal crusades, or he was trying to please a boss whose fee-fees were hurt by the James/Comey setbacks, or both, is something only he knows.

What is much clearer is that if Hegseth was trying to find an even weaker cause of action than the ones used against James and Comey, he most certainly succeeded. Military law is sometimes a bit wonky, and there are some differences between it and civilian law, but here are four giant problems with any sort of legal action against Kelly:

1. Kelly is a civilian, and so not subject to the Uniform Code of Military Justice anymore (except under very narrow circumstances, which do not apply here). It is true that active-duty military have greater constraints on what they can say publicly. It is equally true that you do not permanently encumber your First Amendment rights when you join the military, and that you go back to being able to speak as you see fit (within the bounds of civilian law) once you separate from the armed forces.
   
   
2. Not only is Kelly a civilian, he is also a United States Senator. It is not clear where the video was recorded, because a background filter was used, but it was likely in his Senate office. If so, then he is likely covered by the Speech or Debate Clause, which actually gives him far greater latitude to speak his mind than an ordinary citizen would have.
   
   
3. Because of the nature of the video (with the six speakers taking turns), the most "provocative" thing that Kelly personally said was: "Our laws are clear: You can refuse illegal orders." For the record, here is everything else he personally said: "I'm Senator Mark Kelly," "I was a captain in the United States Navy," "We want to speak directly to members of the military," "This administration is pitting our uniformed military," "Like us, you all swore an oath," "And that it's a difficult time to be a public servant," "Your vigilance is critical," "And who we are as Americans," and "Don't give up."
   
   Nothing there is remotely actionable. His most direct statement—"You can refuse illegal orders"—is a fact, and repeating facts is not actionable. Even if Kelly had said "I really think soldiers should disobey their orders," that is STILL not actionable. Under the Brandenburg test, for speech to be punished by the government, it has to be "directed to inciting or producing imminent lawless action" and "likely to incite or produce such action." In other words, Kelly would have to say something like, "Your commander just ordered you to conduct a reconnaissance of the area immediately surrounding the base where you were stationed. DO NOT DO IT."
   
   
4. The charge that members of the Trump administration, including Trump himself, are bandying about, is sedition (or seditious conspiracy). That sounds scary, which is presumably why Trump likes to use the word as if it were a billy club. And it actually is scary, because it means trying to overthrow the government. But of course, Kelly and his five colleagues did not come within a country mile of suggesting the government should be overthrown.

Right now, John Bolton is undoubtedly jealous. He wishes the case against HIM was this weak.

And then there are the politics of this persecution-masquerading-as-prosecution. Kelly is a war hero, who flew more than three dozen combat missions during the Persian Gulf War, and who received two Defense Superior Service Medals, one Legion of Merit, two Distinguished Flying Crosses, four Air Medals and a chestful of other decorations. That's pretty good and then, after all that, he was an astronaut. Fighter pilot and THEN astronaut? That was the fantasy of approximately 99% of Baby Boom-generation males. If the next Captain America turns out to be Mark Kelly under the mask, would anyone really be surprised? Certainly, this is not the ideal opponent to face off against when you're trying to win battles in the court of public opinion.

If Hegseth had half a brain, he'd see the legal and PR problems he's up against, and he'd quietly drop this whole matter (which, by the way, Kelly and the Democrats are already using for fundraising). That said, if Hegseth had half a brain, he would never have traveled down this stupid road, and tilted at this very stupid windmill, in the first place. So, we have to assume he'll pursue this with Don Quixote-like vigor until a judge tells him to pound sand in, oh, about 6 weeks. (Z)