Secretary Pete Hegseth’s Pentagon is in disarray. Adherence to the rule of law is now, apparently, a ground for termination. The latest target in Hegseth’s continued purge was former Secretary of the Navy John Phelan. Phelan’s firing reportedly frustrated some White House officials, and it apparently came after the Navy Secretary found himself square in Hegseth’s crosshairs over his refusal to punish Senator Mark Kelly (D-AZ) for his appearance in a video purported to be an alleged catalyst for mutiny. After a federal judge ruled against the Pentagon’s pursuit of disciplining Kelly, Secretary Hegseth reportedly ordered Phelan to ignore the order and issue punishment to the retired Navy captain anyway. These reported events are an alarming development in the ongoing saga of instability in the Pentagon that should concern every DOD employee who thinks the law is on their side.
Months ago, Hegseth moved to downgrade Kelly’s retirement rank and pay as punishment for the senator’s participation in the so-called “Seditious Six” video. The problem for the Secretary’s pursuit: there’s no there, there. This is a manufactured scandal built on hollow ground, and the harder the Department of Defense tries to sculpt it into something meaningful, the faster it crumbles.
The central claim for punishing Kelly rests on the idea that the Senator encouraged troops to reject legal orders. The most glaring problems for DOD are twofold. First, Kelly clearly referred to the ability to refuse illegal orders – a fact in the record that was apparent in the DC Circuit oral argument late last week. “He never did say those words,” Judge Cornelia Pillard, said in response to the government’s attempt to put words in Kelly’s mouth.
The second problem, ironically for DOD, is the government can’t point to any specific orders to which Kelly referred. In the hearing, the government tried to glom onto Judge Karen L. Henderson’s suggestion that Kelly, at a press conference nearly two weeks after the video was published, said “we were looking forward to try to head something off at the pass” (video and transcript of Kelly press conference). Looking forward. Head something off. And that something clearly not being deployment orders to U.S. cities – which had long ago occurred:
Los Angeles deployment: Jun. 7
Washington, D.C. deployment: Aug. 11
Portland deployment: Sept. 28
Chicago deployment: Oct. 4
Memphis deployment: Oct. 10
Congressional members’ video: Nov. 18
Senator Kelly press conference: Dec. 1
In the hearing, the Department of Justice embarrassingly told Judge Henderson that they agreed Kelly’s words at the press conference had no other meaning other than to stop the National Guard from going into cities – an anachronism possible only if Kelly could travel time. (Note: This misunderstanding of Kelly’s words at the press conference is potentially crucial to Judge Henderson’s vote. In the hearing, she later said that if Kelly had not had his press conference, she “might agree” with the other judges in rejecting the government’s appeal.)
At bottom, the Pentagon is trying to force a hypothetical into a legal reality. Regardless of one’s opinion on ethics of politicians attempting to influence troops’ obedience to military commands, the fact remains: Senator Kelly – or any of the “Seditious Six” – cannot incite disobedience to orders not given.
Moreover, even if alleged illegal orders were issued and Senator Kelly encouraged disobedience, words alone are insufficient to prove causality directly attributable to Senator Kelly and other video participants. The politicians espousing their views are not part of a military chain of command and have no authoritative basis to instruct troops to do anything. In simpler terms; words from those beyond the chain of command do not cause mutiny; individual choice and agency would be the culprits. As such, Hegseth’s threats to recall Kelly to active duty to face courts martial is baseless folly.
The video itself only underscores the futility of this pursuit. It is a tactically constructed piece of political communication – spliced, blended, layered. Multiple voices are stitched together to create a collective narrative. No single speaker delivers a standalone statement that can be isolated and attributable to an individual sufficient for subsequent legal charges. The entire effect of the editing avoids precisely that: no individual owns a single, clean, unbroken line of argument. Yet critics are trying to retroactively attribute a continuous message to a single person, even though the footage makes that impossible. Assigning legal responsibility to any one official for the full composite script is like blaming one player for the failure of an entire team.
For those claiming Kelly – who is a retired naval officer – is guilty of insubordination and thus should be prosecuted under the Uniformed Code of Military Justice (UCMJ), the argument lacks legal support. It is true that Kelly – as a military retiree – remains subject to the UCMJ. Retired officers occupy a peculiar legal space – and at least theoretically, Kelly could face scrutiny under UCMJ Article 88 if he were to express contempt toward certain civilian officials. But nothing in this video constitutes contempt sufficient to violate Article 88. The Manual for Courts Martial (MCM) outlines specific criteria required to violate and further aggravate an Article 88 offense. Kelly did not personally attack the president or the Secretary of Defense. Moreover, the MCM’s explanation of Article 88 stipulates “if not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged as a violation of the article.”
If the Pentagon attempted to stretch Article 88 into a legal case against Kelly, it would lose. The law was written to prevent military personnel from launching personal, contemptuous attacks on civilian authorities. That is not what happened here. And the Department of Defense knows it.
So the question lingers: what exactly is the Pentagon trying to pursue as basis of punishment for demoting Kelly’s rank? A nonexistent order? A theoretical violation? A sentence that Kelly never uttered in the form it appears in the video? The more you examine the foundation of this controversy, the shakier it appears.
Criticism from elected officials, whether sharp or soft, is routine. Oversight is the design. Elected officials – retired military or not – have wide latitude to speak about military norms, constitutional obligations, and the importance of lawful conduct within the ranks. If the Pentagon starts treating these statements as criminal threats, the Department will place itself above scrutiny and outside the reach of the very civilian oversight it is designed to operate within. No institution in the republic warrants that level of insulation.
Instead of projecting strength, the Pentagon now projects insecurity and attempts to silence and punish anyone within its ranks who openly disagrees with leadership. Instead of demonstrating discipline and perspective about what actually matters, Hegseth’s hollow pursuit of Kelly shows a hair-trigger defensiveness that appears to be more about personal vendetta’s and intimidation than anything else. The irony is striking: Kelly warned that democratic guardrails matter. And the Department’s response was to prove his point by reacting as though such guardrails are somehow dangerous. You can’t make this stuff up.
Civilian oversight is not a threat to military order; it is the backbone of the republic’s defense structure. The Pentagon does not strengthen itself by trying to muzzle its overseers.
If anything, the senator’s remarks offer an opportunity for thoughtful discussion about the ethics of lawful v. unlawful orders and about the utility – or lack thereof – of politicians weighing in on military decision making. Instead, the Department chose to posture. Instead of addressing the substance, it hunted for violations that do not exist. Instead of engaging in honest reflection, it inflated a meticulously edited political message into a looming national security concern.
But after all the noise, we are left with the same conclusion: there is no there, there. No legal order actually at issue. No sedition. No Article 88 violation. No singular statement that can be traced to Senator Kelly as a standalone call for misconduct. Just a spliced, multi-voice video and a sprawling overreaction.
The Pentagon would do well to step out of this self-created fog and return its focus to matters that actually threaten the country. Because this is not one of them. This is, once again, much ado about nothing – the latest entry in a growing catalog of Pentagon follies that never should have escaped the cutting room floor.