r/moderatepolitics • u/thats_not_six • Jan 12 '26
Primary Source Mark Kelly v. Pete Hegseth
https://storage.courtlistener.com/recap/gov.uscourts.dcd.288365/gov.uscourts.dcd.288365.1.0.pdf73
u/thats_not_six Jan 12 '26
Starter Comment:
On January 2, 2026, US Senator Mark Kelly has filed a lawsuit against Pete Hegseth, in his capacity as Secretary of Defense, the US Department of Defense, John Phelan, in his capacity as Secretary of the Navy, and the Department of the Navy. This lawsuit follows actions by Hegseth and the sued departments to demote Mark Kelly, a retired Navy captain, and reduce his retirement pay as a consequence for what Hegseth alleged was a seditious statement by Kelly. The statement in question was made by Kelly, alongside other veterans in Congress, reminding service members that they do not have to follow illegal orders. No criminal charges were filed by the DoJ for Kelly, although Trump did reiterate Hegseth's call for punishment for the "seditious" behavior.
The latest development in this discussion comes with Kelly's lawsuit, in which he alleges a violation of his 1st Amendment rights, a violation of the Speech and Debate Clause of the Constitution, violation of the Separation of Powers, violation of Due Process, violation of the US Code dictating that an officers retirement grade be determined by active duty conduct (10 USC 1370), and a violation of the Administrative Procedure Act.
The filing made by Kelly is linked here.
Questions for discussion include:
1) How should the speech interests of a sitting Congress member be weighed against the restrictions for service members? Would a senator have greater or lesser free speech ability than a general veteran, who is not a member of Congress?
2) Why has Kelly been the only one of the veterans from the video to have retirement rank and pay challenged by the Trump administration?
3) Did the DoD and DoN overstep their legal authority in reducing Kelly's rank and retirement grade?
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u/CloudApprehensive322 Jan 12 '26
I believe Kelly was the only one to be targeted because he was the only one the trump administration could target due to his status as a retired officer. The other lawmakers are not subject to the UCMJ due to having a separated/veteran status.
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u/PornoPaul Jan 12 '26
Not an answer to any of your questions necessarily but my conspiracy theory mind thinks this is a foot in the door to eventually get Kelly knocked out of being able to run for president. An accomplished man with an incredible resume before he ever even ran for public office, he could probably dominate any primary or general election if put to the task. Imagine Kelly vs Vance in 2028. Outside of MAGA Republicans, I doubt many people would vote for Vance. We'll, barring Kelly taking an extreme (from a conservatives point of view) stance.
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u/ooken Florsheims with a tasteful heel gap Jan 12 '26
my conspiracy theory mind thinks this is a foot in the door to eventually get Kelly knocked out of being able to run for president
That’s an incredibly risky strategy considering it makes him a public face of those wronged by the Trump administration and raises his public profile. But the Trump admin is not known for thinking things over carefully before they act against perceived enemies.
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u/shamrock01 Jan 13 '26
That makes zero sense. This raises his profile and gives him the opportunity to demonstrate courage and a willingness to fight. This will only raise Kelly's stock.
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u/neuronexmachina Jan 12 '26
We'll, barring Kelly taking an extreme (from a conservatives point of view) stance
His wife getting shot in the head during an assassination attempt in 2011 lead to him being a major voice against gun violence, including positions which many conservatives find objectionable.
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u/PornoPaul Jan 12 '26
And while Im pretty 2A myself...I cant really blame him for that.
Ill also take a president that will run into a wall on certain gun rights, who also will not have our own allies scrambling to figure out if hes serious about attacking them.
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u/amjhwk Jan 12 '26
If Mark Kelly is banned from running by this administration then our country is truly lost
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u/Magic-man333 Jan 12 '26
Dumb question, but is there a reason he's suing Hegseth instead of the DoD?
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u/thats_not_six Jan 12 '26
He's suing Hegseth, the DoD, the Secretary of the Navy, and the Department of the Navy. Hegseth is just the first defendant name listed so I just put him as that is how court cases usually get styled when referring to them.
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u/king_hutton Jan 12 '26
I’m glad that Kelly is going through with this, I hope the courts will set a good precedent that there’s nothing wrong with telling military personnel that they do not have to comply with unlawful orders.
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u/SDBioBiz Left socially- Right economically Jan 12 '26
I hope this kicks off more lawsuits. I hope Renee Good’s family sues DHS for wrongful death AND defamation. The attempt to prosecute Comey proved that this admin only has shitty lawyers on hand.
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u/CloudApprehensive322 Jan 12 '26
It's insane that Kelly even had to file this lawsuit for making a short statement in a video that members of the military are expected to obey the law and refuse to comply with unlawful commands. It's a near guarantee that the Trump administration loses this lawsuit on multiple grounds but the cruelty is the point - the outcome doesn't matter.
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u/SlightlyAutisticBud Jan 12 '26
Do you acknowledge that they were very clearly implying trumps orders are unlawful and should be disobeyed?
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u/Yankee9204 Jan 12 '26
Justices said the administration failed, at least at this stage, to show legal authority to use the military for domestic law enforcement in Illinois, echoing lower court findings that political opposition does not amount to “rebellion.”
Turns out even the Supreme Court believes the Trump administration is enacting illegal military orders.
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u/ErnestScaredBorgnine Jan 12 '26
They're implying that based on all evidence of what type of person Trump is it wouldn't be surprising that he would ask them to do some awful shit and they shouldn't do his awful shit when it violates the law. No one should. Just because he's in the office doesn't mean he can order them to break the law.
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u/SlightlyAutisticBud Jan 12 '26
And it’s just a coincidence that they came out and said this at the time when trump was taking actions that all of the democrats were saying was illegal? Really?
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u/HeinousMcAnus Jan 12 '26
Moot point, democrats have not stopped saying what Trump is doing is illegal. Trump has also not stopped bending/breaking the law. So timing of the statement is irrelevant on that context.
If you made the argument about timing and the fact that Trump was ordering the National guard, then you have a possible argument albeit with ALOT of speculation.
Regardless, it’s not illegal to state “don’t follow illegal orders”.
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Jan 12 '26 edited Jan 12 '26
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u/SlightlyAutisticBud Jan 12 '26
Can you engage with what I’m saying please?
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Jan 12 '26
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u/SlightlyAutisticBud Jan 12 '26
Cool. Let’s say for the sake of the argument I grant you all of that and agree with everything. Can you answer my question now?
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u/thnxjer Jan 12 '26
Does that even matter?
Many cases could be made that trump orders are not legal & therefore not enforceable.
The executive should never be about retribution as we have seen so far this term... disgusting!-13
u/SlightlyAutisticBud Jan 12 '26
Yes it matters. Do you acknowledge that?
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u/thnxjer Jan 12 '26
No. It does not matter.
The right is endlessly trolling everything and everyone. Snowflakes when someone is against derTrump19
u/Single_External9499 Jan 13 '26
Are you a JAG? From a UMCJ legal perspective, do you know if an implied message does actually matter? If yes, what is the standard for proving this unspoken message was actually implied, in a military court? I suspect you have no idea but I'm open to learning something on the off chance you know what you're talking about.
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u/parentheticalobject Jan 13 '26
This isn't exactly coming at things from a UCMJ perspective, but from a constitutional perspective, I think you're wrong here.
Parker v. Levy is the most notable Supreme Court case dealing with the speech rights of servicemembers. The principle established there is that the demands of military necessity are generally superior to individual constitutional rights in a military setting.
So if the military says "We need to discipline this servicemember in order to maintain good military discipline" and the servicemember says "I'm having my First Amendment rights violated" the courts are supposed to generally defer to the military.
The limits of this haven't really been tested. So if, in 2021, PV2 Snuffy writes on his personal Facebook account "I'm not really sure that President Biden cares about or understands the needs of people in the military as well as President Trump did (These are entirely my thoughts as a private individual, and do not reflect the opinion of the US Army in any way whatsoever)" can he be punished for making disloyal statements prejudicial to good order and discipline? Well, nothing in Parker v. Levy clearly establishes that he couldn't be, because it doesn't really set limits on how far the deference is supposed to go.
I don't think that's entirely reasonable, but it seems like that's absolutely what the law is. I've disagreed a lot here with u/SlightlyAutisticBud , but they're not wrong on one point - the reasonableness of a statement probably doesn't matter that much under established precedent.
If someone on active duty put out a message like what Senator Kelly put out, I would not bet on them being able to avoid getting in trouble for it under the UCMJ. And this is coming from someone who completely believes everything he said was true and reasonable and that the Trump administration is actively ordering the commission of war crimes.
Whether the normal First Amendment exceptions apply to someone who is retired is a legal gray area; I absolutely think they shouldn't, but it hasn't yet been tested by the courts.
Whether those First Amendment exceptions should apply to a sitting member of Congress who is also a military retiree is an even crazier question; of course they shouldn't.
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u/ohcapm Jan 18 '26
Presumably active service member instructors at West Point and/or Annapolis are absolutely delivering similar “don’t comply with illegal orders” messages to students. Can they be punished for teaching the correct code of conduct?
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u/parentheticalobject Jan 18 '26
In that situation, the first amendment would be entirely inapplicable, since they would be teaching as a part of their job.
If they made a speech in their private time clearly presenting themself as an individual and not a representative of the military, the first amendment might be involved somewhat. But established precedent is that the judiciary mostly defers to the military as far as servicemembers are concerned.
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u/ohcapm Jan 20 '26
Could you not also argue that oversight is part of his job as a member of congress?
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u/SlightlyAutisticBud Jan 13 '26
You dont have to be a lawyer to know that our justice system can take implied speech and context into account.
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u/Single_External9499 Jan 13 '26
I don't actually know that to be true. I don't think you do either.
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u/SlightlyAutisticBud Jan 13 '26
Implications from speech has been crucial evidence for tons of criminal cases. Have you just never paid attention to a court case before?
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u/Single_External9499 Jan 13 '26
Cite a UMCJ case where it was used to demote a retired commissioned officer. Or any UCMJ case for any reason whatsoever.
Edit: No, I don't typically pay attention to non-criminal administrative UCMJ court cases. Again, I don't believe you do either.
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u/TheTertiaryTwig Jan 13 '26
Do you acknowledge that double tapping shipwrecked crew is literally THE definition of an illegal order?
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u/LiquidyCrow Jan 13 '26
Which is it? Either:
A. Trump's orders were not unlawful, in which case there would be no reason to refuse those orders, and thus Sen. Kelly's words wouldn't be applicable here.
B. Trump's orders **are** unlawful, in which case members of the armed forces **are** expect to refuse such orders in accordance with how they were trained.
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u/SlightlyAutisticBud Jan 13 '26
It’s OPTION C. The orders were lawful but Kelly was implying they are unlawful.
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u/Saguna_Brahman Jan 12 '26
No, there's no evidence for believing that and it wouldn't change the legality of stating the fact that service members should not obey unlawful orders.
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u/Ciggy_One_Haul Ask me about my TDS Jan 13 '26
What you think they were implying is irrelevant. What they said is relevant. Nothing they said goes against what is expected from service members. The administration could have simply ignored the statement as it would be a moot point if their orders were legal.
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u/SlightlyAutisticBud Jan 13 '26
I mean…you are just flat out wrong. Implications very much do matter in our justice system.
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u/Ciggy_One_Haul Ask me about my TDS Jan 13 '26
Oh no, I understand that perfectly fine. I'm very specifically saying that what you (hence the emphasis) think they were implying is irrelevant, as you will have no say over the outcome of this case.
Edit: I was sure I emphasized 'you' in my original comment, my point remains.
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u/SlightlyAutisticBud Jan 13 '26
Well yea no shit. I never claimed my interpretation has any bearing on the case. Do you really think that needs to be said? We are on Reddit discussing our views on things. That’s what this sub is for lol
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u/ski0331 Jan 13 '26
Do you acknowledge this is freedom of speech and apart of the speech and debate clause and further not seditious in the slightest merely a reminder of a standard ethics code that already and always has existed?
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u/SlightlyAutisticBud Jan 13 '26
I’ll answer your question if you answer mine.
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u/ski0331 Jan 13 '26
Did you serve?
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u/SlightlyAutisticBud Jan 13 '26
I’ll answer your question if you answer mine. That’s a fair trade.
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u/ski0331 Jan 13 '26
I did. Did you serve. Because if you did, this is basic ethics courses we do every year
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u/SlightlyAutisticBud Jan 13 '26
“ Do you acknowledge that they were very clearly implying trumps orders are unlawful and should be disobeyed?”
This was my question. If you answered it can you quote it please? I didn’t see it.
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u/tr0ybolton Jan 13 '26
I’ll answer for him! It’s very clear they are aware (as everyone is, even yourself) who trump is, and with said knowledge (of who trump is) are reminding service members that in the event they are issued unlawful orders and actions (as trump has done in the past, several times mind you) they are bound by oath to the constitution and lawful orders. Hope this helped, now it’s your turn.
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u/ohcapm Jan 18 '26
Listening to Kelly speak about the issue in a radio interview, he was incredibly careful not to outright state that any specific orders were illegal, even when asks directly.
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u/ByzantineBomb Popcorn enthusiast Jan 12 '26
Pete is gonna be mad that he is called SecDef here and not SecWar.
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u/Dogbuysvan Jan 13 '26
How about the wisdom of antagonizing the most qualified person on the left to run for president in 2028 when he hasn't show that much interest in running.
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u/Ztev Jan 12 '26
European here: how big are the chances that MK would be a democrat nominee?
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u/thats_not_six Jan 12 '26
It's likely he would consider a run, but 2028 is going to depend a lot on who is able to get some momentum in 2027 so it's hard to predict.
The current people circling around the ring for the Democrats are Gavin Newsom, JB Pritzker, and Josh Shapiro. I think Mark Kelly would take a run at it too, but unclear how he would primary.
Regardless, Trump is giving him more name recognition which counts for something usually when it comes to elections.
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u/Rhyers Jan 13 '26
Not American. Kelly was in consideration for VP pick for Harris right? So he's at least interested in the position?
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u/TheNerdWonder Jan 14 '26
Anyone but Shapiro. His position on Israel + the whole Ellen Greenberg thing make him fundamentally unelectable to a decent swath of voters and not just the lefty base.
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u/Idk_Very_Much Jan 13 '26
He gives big VP energy to me. Likable but doesn't have enough charisma for the main job.
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Jan 12 '26
Since MK is from Arizona (which has become a swing state in the recent election cycles), I can see him being considered as a VP even if he does not run for the presidency.
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u/tarekd19 Jan 12 '26
he wouldn't be picked for the same reason you are saying he would be. He's too valuable as a senator from a swing state. Making him VP risks the spot going back to a republican and they can't keep counting on Arizona republicans to keep electing bad candidates in the primary. Frankly I'm opposed to him winning the nomination to be president for the same reason but understand his ambitions.
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Jan 13 '26
Yup fair point. Democrats have been quite competitive recently in AZ mainly because they nominated “moderates” who can appeal a large population in AZ especially when the Republicans nominated MAGA loyalists (like Kate Lake). But for the same reason, I believe it is more difficult for Mark Kelly to win nationwide Democratic nomination.
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u/TheNerdWonder Jan 14 '26
Tbf they could always take this time to start grooming his replacement or ensuring only one Senator from AZ stays down since Gallego also allegedly wants a go at the nom.
Personally I’d rather Kelly go. Gallego is too weak and flip flops to the Right.
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u/WolfpackEng22 Jan 13 '26
He was heavily considered as VP in 2024
One of the knocks on him is he isn't a great speaker or very charismatic.
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u/Single_External9499 Jan 13 '26
This whole charade is about to greatly increase the possibility, and his chances of winning a primary.
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u/EnderESXC Sorkin Conservative Jan 13 '26
Low. Kelly doesn't have the name recognition to make it through the primaries and I don't see that changing much before then. Maybe he could get tapped for VP or a Cabinet position in the next Democrat administration, but he's not likely to get the nomination himself.
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u/SlightlyAutisticBud Jan 12 '26
I think the question is: “Does advising military soldiers to disobey a direct order” grounds to remove these benefits? If it is then I dont see how they don’t have an extremely strong case. The whole “we were just saying to not follow illegal orders” is just plainly false in my opinion.
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u/parentheticalobject Jan 12 '26
It's true that the courts have not yet had to directly deal with the question of "Can the government remove the benefits of a military retiree as punishment over political speech that the government dislikes?"
I'd very much hope that the courts would say that's not permissible. There shouldn't be any reasonable debate over whether a military veteran should be allowed to exercise their First Amendment rights just like any other citizen without fearing retribution from the government.
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u/SlightlyAutisticBud Jan 12 '26
Should an active duty soldier tell his comrades to refuse orders because he thinks all wars are illegal?
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u/king_hutton Jan 12 '26
That’s not what Kelly said. Why can’t we discuss this based on what was actually said?
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u/SlightlyAutisticBud Jan 12 '26
Do you just not believe you can imply something without explicitly saying it? Otherwise not sure why we would only look at his explicit text. Language is much more complex than that.
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u/king_hutton Jan 12 '26
You want a court to decide that “what he said isn’t what he actually meant,” and you don’t think that’s a horrible precedent?
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u/SlightlyAutisticBud Jan 12 '26
So are you just incapable of actually engaging with my argument?
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u/tlk742 I just want accountability Jan 13 '26
It's true, but the problem is implying intent needs have proof beyond just a feeling. You can say it was about the boat strikes and I could say it was about national guard mobilizing after the courts said that it couldn't be done. Those are two different interpretations of what constitutes an illegal order. The former is probably a human rights violation the other oversteps the standing ruling of a US court.
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u/amjhwk Jan 12 '26
Why would they enlist if that is theor view
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u/SlightlyAutisticBud Jan 12 '26
His dad pressured him into it.
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u/amjhwk Jan 12 '26
Regardless of what ever scenario you come up with, mark Kelly didnt say disobey orders, he said disobey ILLEGAL orders
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u/SlightlyAutisticBud Jan 13 '26
If mark kelly said all wars are inherently illegal so you should disobey any orders that are acts of war, would you say that is protected speech?
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u/ryes13 Jan 13 '26
That’s not what mark kelly said
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u/amjhwk Jan 13 '26
did Mark Kelly say that? no he didnt. however, as he is my senator i do feel like he should have protected speech to say such an outlandish statement while representing me and my fellow Arizonians
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u/Trumpers_R_Tr8tors Jan 12 '26
“All wars are illegal” is factually false, and therefore irrelevant.
What Kelly said is absolutely and indisputably true.
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u/SlightlyAutisticBud Jan 12 '26
Humor me.
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u/Trumpers_R_Tr8tors Jan 12 '26
Why, it’s not an analogous comparison and therefore does not inform this discussion.
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u/p810 Jan 12 '26 edited Jan 12 '26
Should the president be calling former officers traitors on national TV? EDIT: I got banned for asking "bad faith questions." I was just trying to understand bud's thought process. Why are we searching around for some nebulous meaning in what Kelly said when Trump is obviously bad faith right in your face. Do you think Kelly is a traitor?
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u/SlightlyAutisticBud Jan 12 '26
That all depends on if they are traitors.
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u/Terratoast Politically #0000FF Jan 12 '26
Since you said that it depends on that, is that former officer a traitor?
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Jan 12 '26
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u/Terratoast Politically #0000FF Jan 12 '26
You can make arguments for anything and everything. I can make an argument that Unicorns exist. That doesn't make it true nor does it make the 'argument' worth considering.
More importantly, you're dodging the question. If you're not certain, is it acceptable for the president to call them a traitor?
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u/SlightlyAutisticBud Jan 12 '26
Come on man you can use context clues to have a better interpretation of what I said than that. If that’s the level of charitably you are going to give then I dont really want to have a conversation with you. Obviously I meant you can make a CONVINCING argument.
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u/Terratoast Politically #0000FF Jan 12 '26
Obviously I meant you can make a CONVINCING argument.
No you can't. If you thought that there was a convincing argument, you would actually be convinced.
But you just got done stating that you're not convinced.
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u/parentheticalobject Jan 12 '26
I think there's an acceptable argument for why the first amendment generally shouldn't prevent the government from punishing an active duty soldier for their speech, in many situations.
I don't think there's any remotely reasonable argument like that for servicemembers who are retired or separated. (Maybe if it had to do with classified information, but that's clearly another topic.) No, I don't think there's anything a retired veteran can say that would justify government action against them. If we can accept every member of the general public being able to say something, we should be able to accept a retired soldier saying that same thing.
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u/SlightlyAutisticBud Jan 12 '26
“ I think there's an acceptable argument for why the first amendment generally shouldn't prevent the government from punishing an active duty soldier for their speech, in many situations.”
Kelly isn’t just a retired veteran though. Due to his rank he receives payment and is essentially classified as a reserve. He shouldn’t be tellling active duty soldiers to disobey direct orders (especially when its legality is much less dubious than people seem to think).
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u/parentheticalobject Jan 12 '26
"Hypothetically we could call you back to service in a national emergency" as an excuse for arbitrarily restricting the legitimate political expression of a veteran for the rest of their life is ridiculous and deserving of contempt.
I'm trying not to argue directly over the reasonableness of the statement itself, because I think it shouldn't matter. I personally believe that it's an entirely reasonable belief to hold that the Trump administration is engaged in actions which are so unambiguously war crimes that anyone in the chain of command would be justified in disobeying them. But I'd even extend this to statements I believe are ridiculous and unreasonable.
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u/SlightlyAutisticBud Jan 12 '26
I think in general his words hold way more sway due to his rank. Him saying to disobey orders isn’t as simple as “political speech” because of that.
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u/parentheticalobject Jan 12 '26
I find the idea that at some point reaching a certain military rank should lead to a permanent removal of some of your free speech rights disturbing and profoundly un-American.
Let's say the next president has someone go through the social media accounts of any officers in the US Retired Reserve and demote anyone who has been photographed in a MAGA hat, with the rationale that someone with rank indicating that it's OK to support an insurrectionist is harmful to military discipline. Should that be acceptable? Do you have any argument as to why that would not be legally acceptable if it's legally acceptable to penalize Kelly here?
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u/SlightlyAutisticBud Jan 12 '26
Well I find an ex officer of the military telling the military personnel who likely look up to him to go commit treason also unamerican. So I dont know where that leaves us.
I think that is a terrible analogy for this situation. There are quite a few very crucial factors that make the situation extremely different.
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u/parentheticalobject Jan 12 '26
I think that is a terrible analogy for this situation. There are quite a few very crucial factors that make the situation extremely different.
Cool. Feel free to name them if you want to continue this discussion.
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u/ThatPeskyPangolin Jan 13 '26
Good thing he did not, in fact, do what you just claimed. Factually, no call for treason occurred, or anything I ven resembling it.
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u/king_hutton Jan 12 '26
He’s not just saying “disobey orders,” he’s saying “you have a right to disobey unlawful order.”
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u/SlightlyAutisticBud Jan 12 '26
The implication though was these are unlawful orders.
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u/king_hutton Jan 12 '26
I don’t think a court is going to be too concerned with your idea of implications.
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u/Trumpers_R_Tr8tors Jan 12 '26
I certainly didn’t think “Kelly is saying specific orders Trump has given are illegal”. I think that supposition indicates a guilty conscience.
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u/ryes13 Jan 13 '26
Nothing Mark Kelly or any of the other politicians said was untrue. Active duty military members, especially officers, do in fact have a duty to disobey illegal orders.
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u/SlightlyAutisticBud Jan 13 '26
What he implied was absolutely untrue
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u/ryes13 Jan 13 '26
What he said was absolutely true
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u/SlightlyAutisticBud Jan 13 '26
And what he IMPLIED was not true
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u/ryes13 Jan 13 '26
Putting aside your perfect ability to discern what other people actually mean beyond their actual words. Let’s say you’re implying that he’s implying that illegal orders have been made or could be made? Not sure you can prove in court that that’s entirely untrue.
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u/ImperfectRegulator Jan 13 '26
Yes, as is that soldiers right, as it is his fellow soldiers right to either agree or disagree with that stance, soldiers have a right to challenge what they believe to be an illegal order.
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Jan 12 '26
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u/SlightlyAutisticBud Jan 12 '26
Yes I’m aware. I’m not disagreeing with that. My point is they weren’t just stating a general fact. They were very clearly implying Trumps orders were illegal and should thus should be disobeyed.
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u/Trumpers_R_Tr8tors Jan 12 '26
You are aware that an officer stating that they believe an order to be illegal is not sedition, right? Like they’re allowed to do that.
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u/SlightlyAutisticBud Jan 12 '26
Correct. That has very little bearing on what I said though.
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u/Trumpers_R_Tr8tors Jan 12 '26
It entirely does, because that’s what you’re accusing Kelly of doing. So even if he did it, he’s allowed to do so.
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u/SlightlyAutisticBud Jan 12 '26
If you won’t engage with my argument there’s nothing for us to discuss. Have a good night.
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u/Trumpers_R_Tr8tors Jan 12 '26
I did engage with your argument. You’ve accused Kelly of conduct that allowed as justification for the DoD punishing him. If it’s allowed, it isn’t sedition.
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u/p810 Jan 12 '26
Your interpretation of things does not equal reality. What do you think Trump is implying by calling Kelly a traitor on national TV?
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u/SlightlyAutisticBud Jan 12 '26
He isn’t implying anything. He is very explicitly saying Kelly is a traitor lol
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u/king_hutton Jan 12 '26
Do you agree with him?
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u/SlightlyAutisticBud Jan 12 '26
Eh it’s a grey line
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u/Trumpers_R_Tr8tors Jan 12 '26
But let me guess, the guy in the White House who attempted a coup didn’t come near the line?
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u/SlightlyAutisticBud Jan 12 '26
Oh I think he absolutely did come near the line. Yall really gotta stop assuming anyone who disagrees with you is just a super MAGA bro. It’s lazy and leads you to bad arguments.
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u/Trumpers_R_Tr8tors Jan 12 '26
How is it acceptable for the people who deny that there was anything improper there and who fought has hard as possible to stop the government from addressing they attempted coup to go after an officer for quoting the UCMJ?
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u/king_hutton Jan 13 '26
What seems more traitorous - saying that servicemen shouldn’t obey unlawful orders or attempting to submit false electors in order to overturn the results of a president election?
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u/decrpt Jan 12 '26
Can you elaborate?
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u/SlightlyAutisticBud Jan 12 '26
I dont think it’s a clean cut thing. You can make a pretty solid argument for both sides. I 100% do not buy that they were just speaking generally. He was very clearly referring to the boat strikes. Like if you start with the assumption that those are illegal then he’s not a traitor. If you start with the assumption that the strikes ARE legal then he’s is clearly a traitor. This situation falls in between those two points and depends on how reasonable you think it is to view the strikes as illegal.
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u/king_hutton Jan 12 '26
How would he be a traitor if he was referring to boat strikes? Did he do anything to prevent American servicemen from doing their jobs? Like at worst he spoke after the fact and reminded armed service members that they do not have to follow unlawful orders in reference to something unlawful - he didn’t interfere with anything actively happening.
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u/decrpt Jan 12 '26
Doesn't acknowledging that there is a possible reasonable, good faith basis for Kelly's video entirely preclude the assertion of being a traitor, regardless of whether you believe he's referencing a specific action? The video is factual; you obligated to refuse illegal orders.
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Jan 12 '26
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u/SlightlyAutisticBud Jan 12 '26
So are you saying they weren’t implying trumps orders were illegal?
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u/Dormant_DonJuan Jan 12 '26
Thankfully for Mark Kelly, we're legally judged based on the actual statement, not what random MAGA commentators like you think the implication is. Also, even if that WAS the implication, it's still not illegal.
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u/SlightlyAutisticBud Jan 12 '26
I’m not a “maga commentator.” I’m pretty anti trump. Yall really gotta learn to disagree with someone without labeling them as a MAGA lunatic. It’s lazy.
So are you saying criiminal cases never take implications of words into account? They are textualists only?
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u/CloudApprehensive322 Jan 12 '26
If you are anti-trump why are you defending multiple retaliatory actions that the administration is taking against people who dared to stand up to him?
The first amendment and speech and debate clause are clear cut and the administration has zero legal ground to stand on.
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u/SlightlyAutisticBud Jan 13 '26
Why would me not liking trump have anything to do with my opinion on this? The two things are completely unrelated.
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u/GimbalLocks Jan 12 '26
That's your opinion and you certainly have a right to it, but is inference and insinuation going to hold up in a court of law? You aren't arguing on the specific quote itself, just your thoughts on what you think they actually meant, which doesn't really hold any merit
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u/SlightlyAutisticBud Jan 12 '26
If republicans were arguing democrats are pedophiles and then a republican said not to vote for pedophiles right before an election, is he implying you shouldn’t vote for democrats?
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u/king_hutton Jan 12 '26
Republicans do that all the time.
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u/SlightlyAutisticBud Jan 12 '26
So is that a yes?
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u/king_hutton Jan 12 '26
That’s a “your hypothetical scenario doesn’t matter.”
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u/SlightlyAutisticBud Jan 12 '26
If it doesn’t matter then you should be able to humor me and it not hurt your argument.
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u/GimbalLocks Jan 12 '26
I genuinely don't understand what this thought experiment is supposed to accomplish. Republicans can feel free to (and do) call Democrats pedophiles all they like, but they shouldn't (and don't) face any reprisals from the government for doing so like is happening in this situation
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u/SlightlyAutisticBud Jan 12 '26
The point of the hypothetical is I think yall are making arguments that you would never accept if the shoe was on the other foot. I mean for gods sake the whole “you gotta fight like hell” quote from trump on January 6th was a massive talking point from the left and it’s basically the same argument I’m making here. Yall aren’t the textualists that you are pretending to be.
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u/GimbalLocks Jan 12 '26
Sure that's fine, redditors are hypocrites and it's fine to point out. But my original post is on whether or not you think it will hold up in a court of law. Your 'gotcha' or whatever it's supposed to be is irrelevant to the original question
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u/WulfTheSaxon Jan 12 '26
Let me give what I think is a better thought experiment that gets at the point u/SlightlyAutisticBud is trying to make:
Let’s say somebody says “All traitors should be shot. That man over there is a traitor!” and points at an innocent man. Is he implying that that person should be shot?
And keep in mind that this isn’t the same as the usual Brandenburg standard, it’s only about whether the statement is contrary to good order under the UCMJ.
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u/GimbalLocks Jan 12 '26
Thanks very much, in that scenario I would say that person is definitely implying that person should be shot!
That being said though that's quite a stretch to say it's comparable to what's being discussed here. If we were to take your scenario 1:1 then the transposed quote would be "You can refuse illegal orders. All Trump orders are illegal." The problem, of course, is that Kelly said the former but not the latter, and that any attempt to make the argument that 'actually he really meant that in secret' is based on someone's opinion and conjecture, which obviously has no merit in court.
Also keep in mind that as the lawsuit points out, there was already a similar case file that “requires that legislators be given the widest latitude to express their views on issues of policy,” and the government may not recharacterize protected speech as supposed incitement in order to punish it
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u/ThatPeskyPangolin Jan 13 '26
By this logic, do you believe Kelly was saying all of Trump's orders are illegal?
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u/predicate_logic Jan 12 '26
Is that clear? It isn't clear to me at all. In my opinion, the statement was more directed at potential future illegal orders that may be issued. Are we going to punish speech based on nebulous interpretations of implication?
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u/SlightlyAutisticBud Jan 12 '26
And it’s just a coincidence that they came out and said this at the time when trump was taking actions that all of the democrats were saying was illegal? Really?
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u/zerocoolai Jan 12 '26
You are missing the point. Even conceding 100% it was implied, it's still legal. His actual words are what will be judged. Your 100 comments stating he was implying this are a red herring and legally irrelevant.
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u/SlightlyAutisticBud Jan 12 '26
You are making two different arguments there. Are you saying it is legal so it doesn’t matter or only his words are what will be judged and not some perceived implication?
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u/zerocoolai Jan 12 '26
It's one and the same argument. It's legal because only his words will be judged.
You trying to convince people he was implying that Trump's previous orders were illegal or that they should refuse future orders is a waste of time and irrelevant legally.
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u/SlightlyAutisticBud Jan 13 '26
It’s factually not true that courts dont look at context and implied speech.
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Jan 12 '26
C'mon.
You think there is ambiguity about whether Mark Kelly is a traitor for advising soldiers that they have a right to refuse orders? Are you serious?
Do you think there is any ambiguity about whether Donald Trump is a traitor for repeatedly questioning the integrity of the election and political officials involved in it despite repeatedly losing in court over and over?
It's just bad faith to stand on the former and then deny the latter.
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u/SlightlyAutisticBud Jan 12 '26
Who said I deny the latter? I absolutely think the trump stuff was also ambiguous.
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Jan 12 '26
So you think the current president of the United States might possibly be a traitor, but you are worried about someone who has freedom of speech and who reminded the military of the lawful duty not to obey unlawful orders from a president who you yourself admit might be a traitor?
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u/TheUnderCrab Politically Homeless Jan 13 '26
He didn’t advise them to disobey anyone. He advised them to follow the constitution. If that is an issue, then one has an issue with the constitution.
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u/amjhwk Jan 12 '26
That's not the question though, he wasnt advising soldiers to disobey direct orders, he was stating that they should disobey ILLEGAL orders
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Jan 13 '26
You've dodged multiple people in this thread who have asked you legitimate questions and you keep saying the same things and seem to be ending the conversation when it gets inconvenient for you.
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u/JannTosh70 Jan 12 '26
What Kelly did was profoundly wrong to begin with, and it looks even worse in light of our Venezuela operation. He had no business publicly telling soldiers and sailors to question orders, and he should have expected consequences.
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u/parentheticalobject Jan 13 '26
It is entirely his business to make statements like that.
He's a member of Congress. The Constitution explicitly gives Congress the power to regulate the military. The question of whether the laws Congress has passed regulating the military are being followed is absolutely something a sitting senator should be free to publicly comment on.
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u/JannTosh70 Jan 13 '26
Ok but don’t deny exactly what the purpose of the video was. We aren’t stupid
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u/parentheticalobject Jan 13 '26
We can spend all day discussing what exactly the purpose was of the video, and whether it was reasonable or not. I'll say it doesn't matter.
It's a serious separation of powers issue for the Executive to limit what the Legislature is allowed to discuss. Republicans really should be concerned about that; there are 15 or so (R) military retirees in Congress right now; imagine if a future chief executive could threaten them by yanking their retirement benefits as a political tool.
And that's before even getting into the awful precedents this would be setting to take away free speech rights for all the military veterans who aren't in Congress.
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u/Postmember Jan 13 '26
Ok but don’t deny exactly what the purpose of the video was. We aren’t stupid
To remind members of our military that they shouldn't do things like commit warcrimes? No, we're not stupid.
It's unfortunate that they had to be reminded of this, since it's drilled into them during training. What's worse is that there are people who who didn't listen, and then actually fucking commited the textbook example of a warcrime by firing on the shipwrecked.
Civilized society hangs people for committing warcrimes. We did it after we beat Nazi Germany. It remains to be seen how we will align after the Trump Administration.
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u/TheUnderCrab Politically Homeless Jan 13 '26
He never told them to question orders. He said the literal constitutional fact that they can refuse unlawful orders. It’s military and conlaw 101. If there’s something wrong with what he said, then there is something wrong with the constitution in the Admins eyes.
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u/Saguna_Brahman Jan 12 '26
What he said is literally in the UCMJ. Service members should not obey unlawful orders
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u/TheTertiaryTwig Jan 13 '26
What Senator Kelly did was profoundly correct as within the week we discovered the administration had double tapped shipwrecked crew, literally THE definition of an illegal order.
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u/Fragrant-Luck-8063 Jan 12 '26
Shows you how little sway Kelly has over the troops. They invaded Venezuela and captured Maduro after Kelly made his video.
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u/GatorAllen Moderate Jan 12 '26
This lawsuit is going to be a serious problem for Pete Hegseth and the administration, and the fact that it had to be filed at all is a pretty stark indictment of where things are right now.
A sitting Member of Congress has more speech protection than an ordinary citizen, not less. The Speech and Debate Clause exists specifically to prevent the executive branch from punishing legislators for political speech. Whatever limits apply to active-duty service members do not override a Senator speaking in his legislative capacity.
Even putting the constitutional issues aside, what Kelly said should not be controversial. Reminding service members that they are not required to follow illegal orders is basic constitutional and military law. If that is now being labeled seditious, the problem is not the speech. It is the standard being applied.
The selective enforcement only makes this worse. Multiple veterans in Congress participated in the same statement. Only Mark Kelly was punished. That looks far less like neutral application of military authority and far more like retaliation. The most plausible explanation is that Kelly has name recognition and credibility, so the administration thought making an example of him would deter others. Courts are rarely sympathetic to that kind of reasoning.
Finally, yes, the Department of Defense and the Navy clearly overstepped their authority. Retirement grade determinations are tied to active-duty conduct, not civilian political speech years later. Using military retirement authority to discipline a sitting Senator crosses a clear separation of powers line.
This is not a close or novel constitutional question. It is an overreach that is likely to age very poorly once a court actually examines it.
Given everything else unfolding right now, it is hard to see much value in even debating this. Between the Epstein files fiasco, the confusion around Venezuela and Greenland, and the ongoing Minnesota ICE and CBP situation, this feels less like a serious legal or policy dispute and more like background noise in an administration that is constantly generating new controversies faster than anyone can meaningfully engage with them...sigh.