Key takeaways:
- President Trump’s attacks on Sen. Mark Kelly and other Democrats for urging members of the armed forces not to follow unlawful orders is dangerous and incendiary.
- There’s little reason to believe, however, that this attempt will be any more successful than similar attempts to intimidate other critics of the president, such as James Comey or Letitia James, via legal actions.
- Talking like a dictator is a lot harder than ruling like a dictator in a system designed to balance powers against each other and prioritize the rule of law over an autocrat’s decree.
On the face of it, the Trump administration’s persecution of Sen. Mark Kelly (D-AZ) seems really scary. But if you look a little deeper, the story starts to look a little different: proof of Trump’s authoritarian ambitions, to be sure, but also evidence of the weakness and incompetence of his administration’s efforts to actually act on them.
The Kelly situation began a week ago, when the senator appeared in a video with five other elected Democrats — all of whom have national security backgrounds. In the video, addressed directly to members of the military, former NASA astronaut Kelly and his colleagues warn that the Trump administration is “pitting our uniformed military and intelligence community professionals against American citizens.” For this reason, they wished to remind military professionals that they have a right — and maybe even an obligation — to disobey any unlawful orders they might receive.
The White House was furious. In Truth Social posts last week, Trump called the video “seditious behavior by traitors,” adding that sedition is a crime “punishable by death.” While this rhetoric appeared empty — Trump lacks the power to execute senators — that doesn’t make it any less alarming coming from the president.
Then, on Monday, Secretary of Defense Pete Hegseth tried to translate Trump’s fury into actual policy. He announced an investigation into Kelly, who he claims is uniquely subject to Pentagon jurisdiction due to his status as a retired Navy officer — threatening to order him back to active duty and prosecute him under military law for allegedly interfering with the “good order and discipline of the armed forces.”
In theory, this is all very scary: a president openly calling for the execution of opposition party legislators, and the head of his armed forces attempting to haul one of those legislators in front of a military tribunal. That sounds like textbook authoritarianism.
And if the threat against Kelly were serious, it would be. Yet as one leading scholar of military law put it, the investigation is “preposterous”: there are a number of reasons to believe that there’s no actual case against the senator, ranging from the unobjectionable content of Kelly’s message to his status as a lawmaker.
Indeed, attempting legally laughable political prosecutions has become something of a habit for the Trump administration. Just this Monday, a federal judge dismissed high-profile federal indictments of former FBI Director James Comey and New York state Attorney General Letitia James — ruling that the prosecuting attorney, Lindsey Halligan, was herself appointed illegally. In a way, this is a face-saving ruling for Halligan; she had so badly screwed up the Comey case as a technical matter that it was doomed from the outset.
These dismissals come on the heels of the early November acquittal of “Sandwich Guy” Charles Dunn, the former Justice Department official who famously chucked a Subway grinder at a Customs and Border Protection officer in Washington, DC. And Dunn’s acquittal itself comes after a summer where the Trump administration repeatedly failed to secure grand jury indictments against anti-ICE protesters in DC and LA, an astonishing record given that grand juries have a reputation for indicting nearly anyone prosecutors want.
The Trump administration, it seems, really does want to send its political enemies to jail. But doing that is hard — even when your friends control the Supreme Court. It requires overcoming a legal system with multiple internal checks designed to safeguard its independence. And, at least so far, the Trump administration simply hasn’t proven itself capable of doing that.
Why the Kelly case is (probably) a nonstarter
The phrase “military tribunal” conjures up images of sham trials. But in the American system, military courts are fairly professional — with dedicated judges and attorneys attempting to work within the confines of legal principles and precedent. The system is hardly perfect; it has, for example, a longstanding reputation for bias against defendants. But this may be changing: in a 2022 law review article, military attorney Nino Monea argued that recent changes have created a military system that is “more pro-defense than any civilian court.”
Hegseth therefore cannot simply snap his fingers and send Kelly to the brig. He needs to put together an actual case that the senator’s appearance in the video violated the Uniform Code of Military Justice, the federal law that governs the military court system. And there is very little reason to think he can do that.
To begin with, the content of Kelly’s speech is self-evidently unproblematic. For the most part, the video is a restatement of a basic legal principle: the black-letter law that members of the military can refuse unlawful orders. Kelly does not, at any point, suggest that a specific order from Trump or Hegseth is immoral or illegal. He just says that their policy direction creates a risk of illegality, and that soldiers should be aware of their right to refuse any unlawful orders that come up.
There is no reason to think that simply reminding soldiers of the law is an attempt to unlawfully sow indiscipline. Otherwise, the military lawyers who train soldiers would be doing so on a regular basis.
But even if this weren’t true, Kelly’s actions present two other specific problems that experts say create major hurdles for Hegseth’s investigation.
First, the senator is no longer in the military. No case like this has ever been brought against a retired officer for comments that were made after their retirement, and it’s questionable whether the statute in question even applies to someone in that position.
Second, the Constitution explicitly protects speech by members of Congress made as part of their official duties. This is Article I’s “speech and debate” clause, which says that members of Congress are immune from prosecution for comments made “during their attendance at the Session of their Respective Houses.” Court rulings have repeatedly extended this protection to comments made outside of legislative chambers, so long as they are part of their official role in debating public policy.
To turn his “investigation” into anything seriously threatening, then, Hegseth would need to find a professional military prosecutor willing to argue that a retired officer accurately stating the law during their retirement somehow violated laws traditionally applied only to active-duty service members — and that this violation was egregious enough to justify ignoring the well-established constitutional rights afforded to members of Congress.
That’s a very tall task, and experts are extremely skeptical that such a thing could work.
Speaking to NPR, retired Marine Corps attorney Mick Wagoner argued that “it is hard to see [the case] going forwards.” Charlie Swift, another retired military attorney, told the New York Times that Kelly’s “true statement of the law” was most likely protected by the speech and debate clause to boot. And Steve Saideman, a scholar of civil-military relations who is deeply worried about the effects of the administration’s politicization of the military, believes that the Trump administration’s efforts here will ultimately come to little.
“This admin talks a lot of shit, doesn’t always follow up,” he writes on social media. “I think once they realize they would be starting a process they would quickly lose control of, they will let this one fade.”
Many such cases
Of course, it’s possible that the expert consensus here is wrong. Perhaps the Trump administration will find a military lawyer willing to push such a flimsy case, and perhaps they’ll find a military judge willing to rule in their favor. We can’t rule anything out.
But their series of recent failures in court, from Comey to the Sandwich Guy, suggest that one shouldn’t be especially optimistic about their chances. Time after time, the Trump administration has tried to prosecute political opponents — both prominent and not — and their batting average has proven to be abysmal. There is little reason to believe that the military justice system would be especially different, especially when the target is a sitting US senator.
Why?
To answer that question, it’s helpful to think of the Trump administration as attempting a kind of hostile takeover of the legal system — or, more provocatively, a regime change.
Trump doesn’t want to play by the normal rules of the US legal system, which contain fairly robust protections for political dissent. He wants to be able to punish people who contravene or defy him, to have enough power that his Truth Social threats feel more far more real than they currently do.
Trump cannot enact such a transformation simply by firing Justice Department officials and replacing them. He needs to convince thousands of people, ranging from ordinary jurors to lifetime protected federal judges, that the rules they’ve long played by no longer apply — that they can and must discard the procedures they’ve been socialized and trained to follow, and give the whims of the president near-absolute priority over the written law.
This isn’t an impossible task: look at the way that Turkish President Recep Tayyip Erdogan has been able to gin up a preposterous corruption charges against the mayor of Istanbul and 401 others. But Erdogan has been in power since 2003, and has spent an enormous amount of time and energy working to impose political controls over the Turkish justice system.
But Trump hasn’t yet cracked a single year in power, and has not shown any ability or even coherent plan to systematically corrupt the workings of ordinary criminal courts (either civilian or military). A GOP-controlled Supreme Court can protect many of his policies, but can’t rule on every or even most criminal cases. And even the Court showed signs of reaching its limits during the oral arguments on Trump’s tariff powers.
The incompetence issue is, in part, a reflection of this broader systemic barrier to Trump’s ambitions.
When you’re trying to do a kind of regime change, you tend to prioritize personal loyalty to the big man in your staffing choices. Yet there is a well-known trade-off, established in studies of authoritarian militaries, between loyalty and competence. Sometimes, the most competent people aren’t the most politically reliable. And when your ambitions require you to heavily prioritize loyalty over competence — because what you’re demanding is so often so obviously absurd in traditional legal terms — the most appealing hires end up being some of the least competent.
None of this is to say that Trump’s overall authoritarian project is doomed to failure. Rather, it is to say that the Trump administration is currently undermining its own chances. They are trying to do authoritarianism in a ham-fisted way — a blatant assault on the neutral norms of the legal system that would be hard to execute even if the best people were in charge of it.
And Pete Hegseth is very much not one of the best people.
