Kelly vs. Trump on military discipline and duty

Both are in the wrong.

Arizona U.S. Sen. Mark Kelly recorded a video, along with five Democratic congressional colleagues with military or intelligence community experience, urging those still in those services not to follow illegal orders. President Donald Trump called this sedition punishable by death. The Department of Defense has opened an inquiry into recalling Kelly to active duty for the purposes of court-martialing him.

The structure of the video had each participant voicing sentence fragments that composed a narrative whole. It is fair to hold each participant responsible for the whole narrative.

Here are the relevant passages in the video for the purposes of this analysis:

“We know you are under enormous stress and pressure right now ….This administration is pitting our uniformed military and intelligence community professionals against American citizens ….Right now, the threats to our Constitution aren’t just coming from abroad, but right here at home ….You can refuse illegal orders …You must refuse illegal orders.”

Kelly voiced several of the most relevant passages.

Kelly’s defense has been that he and the others were just stating the law, that uniformed forces have the right and the duty to not execute illegal orders. However, the statement goes well beyond that.

The statement doesn’t just deal with the possibility of illegal orders in the abstract. Nor is it exclusively or even primarily future oriented: If you receive an illegal order in the future, don’t execute it.

The statement clearly conveys the message that the military and intelligence community have currently received illegal orders. Twice, the statement says “right now”. The threat to our Constitution is deemed to exist “right now”. “This administration is pitting our uniformed military and intelligence community professionals against American citizens” – that’s stated in the present tense, something that is happening in the here and now.

So, the statement is fairly, and most accurately, read as urging military and intelligence community professionals to disobey some unspecified current orders. As such, it is ill-advised and irresponsible.

There are two possible candidates for current illegal orders. The only current order that could be construed as pitting the military against American citizens is the deployment of National Guard troops to various cities. In court, the Trump administration says that the deployments are to protect federal property and personnel. In public, the deployments are supposedly to suppress runaway crime.

The legality of these deployments is currently being litigated and before the U.S. Supreme Court. Do Kelly and his cohorts really want 20-something part-time soldiers to be making the determination that their deployment unlawfully pits them against American citizens and refuse to muster, rather than defer to the chain of command, obey their orders, and let the courts determine the legality? If not, what in the world does the statement mean?

The other possibility is the military campaign to blow up drug-smuggling boats. I think the campaign is illegal. However, the Office of Legal Counsel in the Department of Justice has opined otherwise, and that’s the highest ranking internal legal authority. Do Kelly and his cohorts really want rank-and-file troops to substitute their judgment for that of the OLC and refuse to execute their part in the campaign? (Some specific tactics, such as the second strike that took out survivors, present a different question, about which more anon.)

And this gets to the irresponsibility. Kelly and his cohorts don’t need to produce a video to communicate with the military and intelligence community brass. This was clearly directed to rank-and-file troops and personnel. While it is true that they have a duty not to execute clearly illegal orders, Kelly and cohorts did not include the legal stricture that there is a strong presumption of legality for all orders. So, Kelly et al. were urging 20-somethings to defy unspecified current orders without sharing all of the relevant legal considerations and consequences.

That was what the statement said. If that was not what was intended, it was even more irresponsible.

I think Kelly is a serious person, in a way in which Trump is not. However, it is hard to fathom a constructive purpose or objective for this video.

If the 2026 election goes badly for Trump and the GOP, Democrats worry that he will somehow use the military to negate the results. Given Trump’s attempted coup after the 2020 election, which included a discussion of having the military seize voting machines, that worry is neither paranoid nor delusional. However, the statement is set in the present, not the future. And directed at rank-and-file soldiers, not the brass who would need to be the first line of defense against improper interference in domestic politics.

Politically, Kelly and cohorts have been rescued by Trump, who can be counted on to counter any irresponsibility directed his way with even greater irresponsibility.

If a senator who had not served in the military said exactly what Kelly said, even attributing the entire statement to him, there would be no legal jeopardy whatsoever. The statement is vague enough not to constitute specific incitement or inducement to disobedience. The characterizations of the administration’s actions are standard political fare among Democrats. The statement of the law, while incomplete, is accurate as far as it goes.

So, by threatening Kelly with a court-martial, the Trump administration is saying that he has less of a First Amendment right to express himself than other senators who haven’t served. And less protection from the Constitution’s speech and debate clause. Even if possibly technically true, it is nuts, and irresponsible, to attempt to punish Kelly based upon those premises.

This is all an illustration of how broken our politics have become. If Kelly and cohorts had just made the public case that some of Trump’s use of the military was unlawful, without urging disobedience by the rank-and-file, it would be a constructive contribution. Their previous service would give weight and credence to their argument.

And if Trump and his administration had reacted to what Kelly and cohorts actually did with sharp criticism and condemnation, that also would have been a constructive, and warranted, contribution.

Instead, we have some otherwise sensible Democratic senators and representatives urging disobedience without specificity or the full legal considerations and consequences. And we have Trump and his administration threatening them with time in the hoosegow not entirely because of what they said, but also because of their past service to the country.

In the midst of this gloominess, there is a ray of hope for a better politics, and it concerns that second boat strike that killed survivors. In both the Senate and the House, the highest ranking Republican and Democrat on the Armed Services committees issued a joint statement announcing an investigation. In the Senate, there has been a joint demand by the chairman and ranking member for the administration to produce much more information about the claimed legal authority for the boat strikes as well as more details about their execution.

Perhaps this is a dawn of both a better politics and a reassertion of congressional authority.

Reach Robb at robtrobb@gmail.com.