The attack by Defense Secretary Pete Hegseth against Sen. Mark Kelly, D-Ariz., is far from over, in part because of the untested legal workaround Hegseth is using as intimidation.
The case remains an unexploded, irksome explosive that could seek to destroy free speech to keep Hegseth from having to answer questions from the public he is supposed to serve.
Like most of the Trump administration assaults on perceived political enemies, Hegseth is nasty, under-evidenced, overly personal, and seeks a punishment most easily achievable rather than focusing on proving a declared violation.
As with threatened but failed prosecution attempts against James B. Comey Jr., former FBI director, New York State Attorney General Letitia James and others, they are meant as retribution and protection of Trump and his circle, not resolution of crimes or civil law violations. As in those cases, the threat of reconstituting cases continues.
In November, Kelly was among six lawmakers to make and distribute a video citing the military’s own warnings for officers and enlisted personnel to consider whether they are being given illegal orders to carry out, and that they have the right to say no. Yesterday, Kelly filed suit in federal court, saying that Hegseth had unlawfully punished the senator for his speech and violated his due process.
Though Kelley and company, all veterans or former intelligence officials, did not reference specific military orders that should be questioned, we’ve seen several instances recently in which the orders to strike anew at stricken crew members on a suspected drug boat, the deployment of National Guardsmen to city streets, or now, by extension, the shooting of an unarmed Minneapolis citizen protesting against the spreading ICE raids in residential neighborhoods all raise legal questions.
In what has become pattern in this administration, Kelly’s “crime” here was to point out the law that is taught to every officer and enlisted soldier, sailor, airman, Marine and Guardian. Only in the cockeyed view of this administration is a dissenting word from existing law seen as a cause for punishment. Kelly has promised to fight any punishment as unwarranted.
Hegseth Took Easiest Route
Though Hegseth had threatened to re-active Kelly, a retired Navy captain and astronaut, to stick him before a court martial board, Hegseth settled on a censure letter to Kelly’s file that says that the senator’s actions were prejudicial to good order and discipline.
That letter – something he could do without process or consultation – opens the way to possible reduction in retirement grade and pay.
That judgment remains pending before Secretary of the Navy John Phelan, who must recommend an action to Hegseth – who already has made up his mind. Regardless, the censure letter cannot be changed, but Kelly remains within time to file an opposing letter to answer its claims. (As an aside, Phelan contributed more than $800,000 to the then-candidate Trump’s joint fundraising committee.)
The possibility of a court martial still hangs in the air, though a board of military peers sitting as jury would have to overlook the statements that Kelly quotes as having come directly from the Uniform Code of Military Justice (UCMJ) to which they all swore an oath. Hegseth has referred the others in the video to the FBI for investigation as having committed “acts of sedition.”
According to USNI News, which covers the military as an independent voice, Hegseth has a variety of punishments available, though most of them are intended for application towards serving military troops, not retirees, and not U.S. senators whose job includes oversight of the military. There are some limitations on what retirees can say freely, but there must be a direct link between objectionable speech and actual military operations. It also must involve something contemptuous against a politician or member of the chain of command.
Kelly’s remarks telling service members to refuse unlawful orders don’t fall under restriction from good order and discipline, and don’t advise specific military orders to refuse. Any broad contempt for Hegseth is shared far more widely than Kelly alone.
Legally Dubious
Meanwhile, the very same Hegseth has declined to cooperate with Congress about releasing videos of the September “double-tap” strikes against a suspected drug-smuggling boat crew and generally has withheld information about National Guard deployments or details about current orders and plans for the military in Venezuela.
Donald Trump himself told The New York Times in a recorded interview that he sees adherence to domestic and international law as relatively optional, that that his power as commander in chief is constrained only by his “own morality.”
Obviously, ordering military strikes in Venezuela without a specific aim other than capturing leader Nicolás Maduro to face drug charges, does not violate Trump’s morality. Nor do attacks on shipping, or on small, suspected drug boats, deployment of troops on our own city streets or extending paramilitary status to undertrained Homeland Security agents.
Given the number of court actions that have found legal problems with Trump administration enforcement actions, the possibility of “illegal” orders seems endless.
For a host of reasons, the warnings from Kelly and company seem well founded. Hegseth’s one-man prosecution campaign seems unfair and reflective of an administration that finds legal boundaries mere guidelines.
Opening Fraud Charges for Fed Chair
In like fashion, the Justice Department’s announced investigation of criminal fraud charges against Fed chair Jerome Powell begs many of the same questions, though the prosecutor is U.S. Attorney Jeanine Pirro and the circumstances involve construction costs for a replacement complex on the National Mall and lying to Congress.
As a result, the probe comes across as a political swipe against Powell over disagreement with Trump about the nation’s basic interest rates, not a fix for high building costs. It’s another move towards intimidation rather than for justice, all because Trump wants lowered borrowing rates from an independent Fed panel. On top of all else, Powell’s term will expire this year and Trump can name his replacement (Trump did name Powell, of course.)
Two aspects stand out: The investigation has become public before it has collected necessary evidence, and it is shaped around a criminal charge as a first alternative, rather than one of multiple routes towards controlling the money spent or planned to finish construction. Criminal fraud will necessitate proving intent, among other things, and at this point, the prosecution does not even have the basic construction documents in hand.
Once again, the Trump administration is bending law enforcement around its desire for political results, not sifting evidence first to even determine if there is a crime here.
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