Order Michael Finch’s new book, A Time to Stand: HERE. Prof. Jason Hill calls it “an aesthetic and political tour de force.”
Democrat Arizona Senator Mark Kelly is a retired Navy captain who flew combat missions and later became a commander of two NASA Space Shuttle flights. But he is now in hot water for appearing in a disgraceful November 18th video, along with several other Democrat lawmakers who have military or intelligence backgrounds. They are Senator Elissa Slotkin, D-Mich.; Representative Chris Deluzio, D-Pa.; Representative Maggie Goodlander, D-N.H.; Representative Chrissy Houlahan, D-Pa.; and Representative Jason Crow, D-Colo.
The “Seditious Six,” as they are known, are accused of conveying messages in their appearances on the video that risk undermining the chain of command and stirring possible dissension in the ranks of the military and intelligence services. Here is an excerpt:
This administration is pitting our uniformed military and intelligence community professionals against American citizens like us…you must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution.
Is it fair to expect an enlistee without legal training to make a split-second determination of the legality of a particular order during a military operation? In the absence of final and definitive rulings by a civil or military court, who is to say which orders violate the Constitution or a particular law? Partisan Democrats with Trump Derangement Syndrome who want to bring the Trump administration down?
As Secretary of War Pete Hegseth said, “In the military, vague rhetoric and ambiguity undermines trust, creates hesitation in the chain of command, and erodes cohesion. The military already has clear procedures for handling unlawful orders. It does not need political actors injecting doubt into an already clear chain of command.” He added that the six Democrat pols “knew exactly what they were doing — sowing doubt through a politically-motivated influence operation.”
The “Seditious Six” are subject to potential criminal liability under 18 U.S.C. § 2387. This statute makes it a criminal offense to urge certain actions by any member of the U.S. armed forces “with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States.” These actions include “insubordination” or “refusal of duty.” The phrase “military or naval forces of the United States” is defined in the statute to include “the Army of the United States, the Navy, Air Force, Marine Corps, Coast Guard, Navy Reserve, Marine Corps Reserve, and Coast Guard Reserve of the United States.”
All the legislators in the video, including Senator Kelly, will no doubt assert a First Amendment defense to prosecution under this statute. They will claim that they were simply expressing their opinion that members of the armed services and intelligence communities can and must refuse to obey orders they believe are illegal. Senator Kelly’s comrades may slip by with this defense. But as a retired military officer who can be called up for active duty and possible military discipline, Senator Kelly has a higher mountain to climb to escape liability.
The context, timing, and wording of the video matter. The legislators did not limit themselves to saying only that service members must obey a lawful order and disobey what the U.S. Manual for Courts-Martial describes as a “patently illegal order such as one that directs the commission of a crime.” Their exhortation failed to warn about the manual’s clear instruction that “An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate.” Nor did they make clear, in the words of the manual, that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.”
Charging that “this administration” is “pitting our uniformed military and intelligence community professionals against American citizens like us” to justify disobeying so-called “illegal orders” suggests a sinister purpose.
The participants in the video traded on their past service in the military or intelligence communities by encouraging military and intelligence personnel to disobey any orders from President Trump they think are wrongful. This is a prescription for dangerous dissension and disorder that 18 U.S.C. § 2387 is meant to prevent among active-duty members of the armed forces.
Senator Kelly left no doubt as to why he and his co-participants made the video during an interview that he gave the day after it was posted. He said the video was responding to actions and proposed actions during the first and current Trump administrations that were believed to be legally questionable. “The decision that he made to have members of the military use kinetic action and kill drug smugglers is really close to going over a line — and perhaps crossed it into illegal activity,” Senator Kelly said.
Senator Kelly and his comrades can disagree all they want with President Trump’s decision to conduct missile strikes on boats in open waters suspected of carrying dangerous drugs to the U.S. But absent a final judicial ruling, to suggest that such strikes “perhaps” crossed the line “into illegal activity” as a reason for telling service members to “refuse illegal orders” is a step too far. Service members who disagree with these strikes, or other orders of the duly elected president and commander in chief of the United States, Donald Trump, may now feel free to disobey them, creating substantial discord in the ranks. And it puts these service members at risk for court-martial if a military judge finds the order that they disobeyed was lawful.
The FBI and Department of Justice are reportedly scheduling interviews with the Democrat troublemakers. Moreover, as a retired Navy captain, Senator Kelly remains subject to the Uniform Code of Military Justice, which means that he can be recalled to active duty and review for possible court-martial or other punishment. The Pentagon has announced that it has opened an investigation into “serious allegations of misconduct” against Senator Kelly.
Senator Kelly responded defiantly that “If this is meant to intimidate me and other members of Congress from doing our jobs and holding this administration accountable, it won’t work. I’ve given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution.”
Senator Kelly has turned shamelessly to using the video controversy to appeal for donations. Somehow his handlers even got ahold of my mobile phone number and sent me a text with his photo and a link to ActBlue. “Let’s call this what is: Political persecution,” the text said. “I need you to chip in $10 or whatever you can afford so we have the resources necessary to fight back against what comes next.”
Not a chance! Senator Kelly walked into a legal minefield with his participation in the video that deliberately sowed the seeds of disobedience within the military’s rank and file.
With Senator Kelly’s participation in the video in mind, the Pentagon issued a statement that cited 18 U.S.C. § 2387 and another statute allowing the military to recall retired veterans to active duty for possible court-martial proceedings.
“The Department of War reminds all individuals that military retirees remain subject to the Uniform Code of Military Justice for applicable offenses, and federal laws such as 18 U.S.C. § 2387 prohibit actions intended to interfere with the loyalty, morale, or good order and discipline of the armed forces. Any violations will be addressed through appropriate legal channels,” the statement said.
Senator Kelly compounded his legal problems when he insulted the Secretary of War, Pete Hegseth, personally with an ad hominem attack. He said during his November 30th interview on NBC’s Meet the Press that “Pete Hegseth is not a serious person.” Kelly added that “I cannot think of a secretary of defense in the history of our country who is less qualified than Pete Hegseth.”
Pursuant to 10 U.S.C. § 888 – Art. 88, “Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.” (Emphasis added)
Senator Kelly is still considered a commissioned officer even though he is retired, and he is therefore subject to punishment under this statute if he “uses contemptuous words” against certain officials, including “the Secretary of Defense.” Arguably, as a commissioned officer, Kelly violated 10 U.S.C. § 888 by publicly insulting the current Secretary of War (retitled from “Secretary of Defense”) with words that can be considered “contemptuous.”
Senator Mark Kelly’s past record of honorable military service does not excuse his highly dishonorable participation in the despicable “Seditious Six” video. He disgraced his uniform by knowingly encouraging active-duty service members to undermine the authority of their commander in chief and the chain of command by refusing to obey presumptively lawful orders that disturb them.
