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Secretary of Defense Pete Hegseth’s campaign to punish Sen. Mark Kelly—a retired Navy captain—for urging members of the armed forces to disobey unlawful orders, is even more outlandish, and legally baseless, than it seems at first glance.

This past November, in a 90-second video addressed to service members, Kelly and five other Democratic lawmakers who had served in the military or in intelligence agencies stated that the Constitution was under threat from abroad and here at home, and that “our laws are clear—you can refuse illegal orders. … You must refuse illegal orders.”

The video failed to mention President Donald Trump’s name or any of his policies, but in the wake of military actions and threats he was making at the time, especially toward Venezuela, the message was clear.

In response, Trump denounced the video as “SEDITIOUS BEHAVIOR FROM TRAITORS … punishable by DEATH!” He added, a bit later, “HANG THEM GEORGE WASHINGTON WOULD!”

Hegseth characteristically chimed in with his own denunciations and, last week, issued a formal letter of censure, which could lead to a demotion of Kelly’s rank, reducing his benefits. Kelly could even be recalled to active duty, then court-martialed, an act that would remove his military status entirely and even land the senator in prison.

On Monday, Kelly filed a lawsuit against Hegseth, Secretary of the Navy John Phelan, the Department of Defense, and the Department of the Navy, claiming that they were trying to deny his constitutional rights and requesting a federal judge to block them from carrying out their threats.

Kelly’s case seems to be a slam dunk. Even if the judge allows Hegseth and Phelan to pursue their censure, it is extremely unlikely—though I hesitate to say impossible, because nothing is impossible with this administration—that the senator’s persecutors will succeed.

First, and most obviously, the notion that Kelly and his colleagues committed sedition, treason, or any sort of crime with their video is preposterous. They were not encouraging service members to defy specific orders—only reminding them that they are obligated not to follow unlawful orders. In this, the lawmakers were merely reciting the clear language of military law.

Second, even if this were seditious (or even if Kelly had made some truly treasonous remark), retired officers cannot be demoted for things they say or do after they retire. “The statutes on this are absolutely clear,” Eugene Fidell, a senior scholar specializing in military law at Yale Law School, told me on Tuesday. (Retired officers can be demoted for things they had said or done on active duty, but no one is even pretending that Kelly’s record as a Navy pilot was anything but salutary.)

Third, retired officers can be court-martialed for sedition. If found guilty, they could be stripped of all military rank or even imprisoned. However, a court-martial would require a trial in a military court, with the prosecutors presenting evidence of criminality. Even Hegseth must realize that the more hard-line military court would likely dismiss a case based on a video in which Kelly recites a fundamental plank of military law.

Could Hegseth just go ahead and sign an order demoting Kelly and docking his retirement pay? Actually, no. According to Fidell, the secretary of defense has the authority to demote only flag officers—that is, generals and admirals. Kelly’s rank of captain, the highest of the U.S. Navy’s senior officers, is one notch below rear admiral, the lowest-ranking flag officer.

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However, Phelan, the secretary of the Navy, could sign such an order. If he did, Fidell told me, Kelly could sue him in federal claims court—and very likely succeed at getting his pay restored and making the Pentagon’s civilian leaders look appallingly petty. The consequences could be deeply demoralizing, within the Pentagon and at U.S. military bases (not that this possibility has deterred Hegseth from his antics so far).

Kelly sees what’s really going on here. In a statement released while filing his lawsuit, Kelly said that Hegseth’s “unconstitutional crusade against me sends a chilling message to every retired member of the military: If you speak out and say something that the president or secretary of defense doesn’t like, you will be censured, threatened with demotion, or even prosecuted.” He added, “That’s not the way things work in the United States of America, and I won’t stand for it.”


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Actually, this does seem to be the way things work in the United States of America now. I know of a few officers who are hesitant to speak out against Trump or his policies precisely because they fear retribution—and lack the access to resources, high profile, and legal protections that Kelly enjoys as a member of Congress. There is also a disposition among many officers, bred in them from their days as cadets, to steer clear of political activity, even if it’s meant to protest the politicization of the military.

Still, there are rumblings of change. Kelly’s suit is one. Federal Reserve Chair Jerome Powell’s video pushback against the Trump Justice Department’s criminal investigation is another. The votes of a few (remarkably few, but still a few) Republican lawmakers—voicing new dissent against Trump’s war-making powers in Venezuela, his imperial threats against Greenland, and even his desire to kill Obamacare—may be more wavelets in a turning tide.

Meanwhile, the crusade against Captain Kelly seems doomed to a proper flameout.