Dem
47
GOP
53
As soon as the six Democrats who are veterans of the military or the intelligence agencies (or both) released their video reminding soldiers that they are allowed to refuse illegal orders, Secretary of Defense Pete Hegseth pounced, and said his department would be launching an investigation of Sen. Mark Kelly (D-AZ), and very possibly recalling the Senator back to active duty and then court martialing him.
Hegseth is a frequent embarrassment and liability for the Trump administration, and so the Secretary needs to find regular stunts he can perform in order to remain in the President's good graces. FBI Director Kash Patel is in the same basic situation. Over the weekend, we guessed that it's a coin flip as to whether Patel still has his job in a year. Reader L.R.H. in Oakland, CA, wrote in to remind us that Patel is actually in some hot water right now, in part because he's lazy and doesn't show up for work very often, and in part because he's abusing the spoils of office. Specifically, he's been using government planes and government-funded security in order to facilitate his girlfriend's performances at sporting events (she sings the National Anthem before games).
Anyhow, Patel initially failed to seize the "opportunity" that the six Democrats provided him. He has now made up for that, and has announced that the FBI "will interview" the six lawmakers about their participation in the video. Both Patel and Hegseth, incidentally, have embraced the use of the oh-so-clever monicker "The Seditious Six."
This is, of course, 100% for show. The six members didn't say anything in the video that is not 100% true, and truth is an absolute defense in any court proceedings involving speech. Even if the six members had lied, as Trump does on a daily basis, the bar for illegal speech for civilians is very, very high, and the sextet didn't come close approaching it. Oh, and remember, they are not just civilians, they are members of the United States Congress. It is very likely that the Speech and Debate Clause protects them in ways over and above the protections enjoyed byt your average Joe and Josephine Sixpack.
Incidentally, we wrote earlier this week that:
[Mark] 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.
If we delve too deeply into the finer legal points in items like this, then we risk losing the main narrative thread and making the item hard to follow. So, we try to communicate the gist of things. In this case, we got a lot of people writing in to correct us, so let's try again. It is, as we noted, possible to recall someone back to active duty and to subject them to a court martial. However, when this has been done in the past, it has almost always been because crimes committed by a servicemember, while on active duty, came to light after they left the service. So, they were recalled to duty to face the appropriate type of music for their crimes. It is theoretically possible to call someone back to service and punish them for something they said. This is enough of a possibility that some advocates have pushed for a law clarifying that former soldiers cannot be punished for exercising their First Amendment rights.
What this means is that if Kelly were recalled to active duty, and compelled to face a court martial, then we'd be an a brave, new world when it comes to the use of Article 88 of the UCMJ. That alone would probably be enough to stop the proceedings from moving forward. If not, well, it remains the case that everything Kelly said was the truth, and it also did not endeavor to incite soldiers to commit sedition or any other imminent, unlawful action. And, again, the Speech and Debate Clause may come into play. Add it all up, and the odds that Kelly is court martialed are very, very low. The odds that he's convicted are miniscule. We should have some clarity soon, though, because Hegseth has set a deadline of Dec. 10 for the Navy to review Kelly's remarks.
There is absolutely no question in our minds that the primary motivations of both Hegseth and Kelly are to curry favor with the boss. A secondary goal is probably to intimidate the six members (and any others who might think about making a similar sort of video). If so, it is a mistake, by two petty tyrants who don't seem to read other people very well. It is improbable that people who spent their careers staring down enemy troops, or Russian spies, or the vast expanse of space, are going to be fazed by silly political stunts.
And really, the risk for Team Trump is much greater than that. There are a lot of Democratic members of Congress who have military and/or intelligence service on their résumés. Does anyone REALLY think that the Democrats did not see this response coming? And does anyone REALLY think that the Democrats did not choose the participants in the video carefully? Three men, three women, all of them white, all of them media-savvy. They represent the Army, the Navy and the Air Force (in other words, the three largest branches of the Armed Services), and were elected by voters in Arizona, Colorado, New Hampshire, Michigan and Pennsylvania. That's one blue-purple state and four swing states. This video was clearly cast with an eye toward "Middle America," and setting up a fight between decorated veterans of national service and the highly indecorous Trump administration. And the Trump administration is falling for it, elevating all six to national status, and anointing them as leaders of the resistance. We don't expect Hegseth or Patel or even Trump to be savvy enough to realize they are being played, but isn't there ANYONE in the White House who can do this kind of tactical analysis? Apparently not. (Z)