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About this Episode
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Today, Democratic Senator Mark Kelly of Arizona sued Defense Secretary Pete Higgseth,
the Defense Department, Navy Secretary John Falen, and the Navy Department for violating
his First Amendment rights, the speech and debate clause of the U.S. Constitution, the
separation of powers, due process, the law that establishes ranks for retired commissioned
officers, 10 U.S. C. 1370, and the Administrative Procedure Act that establishes the ways in
which agencies can make regulations.
While this sounds complicated, at its heart, it's about the attempt of the Donald J. Trump
administration to trample Congress and create a military loyal to Trump alone.
That Secretary Pete Higgseth came to his position from his job as a weekend host on the
Fox News Channel.
Before that, he served in the Army Reserve and the National Guard, but, as Kelly and Senator
Tammy Duckworth, a Democrat of Illinois, noted in a military time's op-ed questioning Higgseth's
fitness for the position, he never rose to a command position and his track record
fall short of military standards.
He is the least experienced defense secretary in U.S. history.
His attack on Kelly, who was a retired Navy officer and astronaut, began after Kelly and
five other Democrats in Congress, Senator Alyssa Slottkin, a Democrat of Michigan, and
representatives Chris Delusio, a Democrat of Pennsylvania, Maggie Goodlander, a Democrat
of New Hampshire, Chrissy Hula-Han, a Democrat of Pennsylvania, and Jason Crow, a Democrat
of Colorado, all of whom are veterans, released a video on November 18, 2025, in which they
warned members of the military and the intelligence community that the administration was pitting
our uniformed military and intelligence community professionals against American citizens.
Like us, you all sworn oath to protect and defend this Constitution, the video continued.
Right now, the threats to our Constitution aren't just coming from abroad, but from right
here at home.
Our laws are clear.
You can refuse illegal orders.
You must refuse illegal orders.
No one has to carry out orders that violate the law or our Constitution.
We know this is hard and that it's a difficult time to be a public servant.
But whether you're serving in the CIA, the Army, our Navy, the Air Force, your vigilance
is critical.
The lawmakers concluded, know that we have your back because now more than ever, the American
people need you.
We need you to stand up for our laws, our Constitution, and who we are as Americans.
The video simply reiterated the law, but White House Deputy Chief of Staff Stephen Miller
promptly posted on social media, Democrat lawmakers are now openly calling for insurrection.
And by the next day, Trump was reposting comments that called for the lawmakers to be arrested,
thrown out of their offices, frog marched out of their homes at 3 a.m. with Fox News
cameras filming the whole thing, and charged with sedition.
He reposted insurrection, treason, and a message from a user who wrote, hang them, George
Washington would.
On November 24, the so-called Department of War posted on social media that it was investigating
Kelly after serious allegations of misconduct.
It suggested that Kelly could be recalled to active duty for court-martial proceedings
or administrative measures.
Over a photograph of the metals on his uniform, Kelly responded on social media.
When I was 22 years old, I commissioned as an ensign in the United States Navy and swore
an oath to the Constitution.
I upheld that oath through flight school, multiple deployments on the USS Midway, 39 combat
missions in Operation Desert Storm, test pilot school, four space shuttle flights at NASA,
and every day since I retired, which I did after my wife Gabby was shot in the head while
serving her constituents.
In combat, I had a missile blow up next to my jet and flew through anti-aircraft fire
to drop bombs on enemy targets.
At NASA, I launched on a rocket, commanded the space shuttle, and was part of the recovery
mission that brought home the bodies of my astronaut classmates who died on Columbia.
I did all of this in service to this country that I love and has given me so much.
Secretary Hegseth's tweet is the first I heard of this.
I also saw the president's posts saying I should be arrested, hanged, and put to death.
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.
Charlotte Clymer, who writes Charlotte's web thoughts, walked readers through Kelly's citations.
They include the Navy pilot astronaut badge, earned by fewer than 200 service members,
and the NASA Distinguished Service Medal.
As Clymer notes, the NASA Distinguished Service Medal is the highest award bestowed
by NASA and one of the rarest awards in the federal government.
Since the Medal was created in 1959, it has been awarded fewer than 400 times.
On January 5, Hegseth issued a formal censure of Kelly, saying Kelly's call for military
personnel to refuse unlawful orders undermines the chain of command.
Council's disobedience creates confusion about duty, brings discredit upon the armed
service, and is conduct unbecoming an officer.
Hegseth said he was directing the Secretary of the Navy to look into reducing Kelly's
retirement grade.
Kelly responded, over 25 years in the U.S. Navy, 39 combat missions, and four missions
to space, I risked my life for this country and to defend our Constitution, including
the First Amendment rights of every American to speak out.
I never expected that the President of the United States and the Secretary of Defense
would attack me for doing exactly that.
My rank and retirement are things that I earned through my service and sacrifice for this
country.
I got shot at, I missed holidays and birthdays, I commanded a space shuttle mission while
my wife Gabby recovered from a gunshot wound to the head, all while proudly wearing
the American flag on my shoulder.
Generations of service members have made these same patriotic sacrifices for this country,
earning the respect, appreciation, and rank they deserve.
Pete Hegseth wants to send the message to every single retired service member that
if they say something he or Donald Trump don't like, they will come after them the
same way.
It's outrageous and it is wrong.
There is nothing more un-American than that.
If Pete Hegseth, the most unqualified Secretary of Defense in our country's history, thinks
he can intimidate me with a censure or threats to demote me or prosecute me, he still doesn't
get it.
I will fight this with everything I've got, not for myself, but to send a message back
that Pete Hegseth and Donald Trump don't get to decide what Americans in this country
get to say about their government.
Kelly's lawsuit notes that the First Amendment prohibits the government from retaliating against
those engaged in protected speech and that the Constitution's protection of the speech
and debate of lawmakers provides additional safeguards.
Indeed, the lawsuit says, never in our nation's history has the executive branch imposed military
sanctions on a member of Congress for engaging in disfavored political speech.
If the court permits that unprecedented step, the lawsuit argues, it would allow the executive
branch to punish members of Congress for engaging in their duty of Congressional oversight.
Kelly asked the court to declare the censure letter, re-opening determination, retirement
grade determination proceedings, and related actions unlawful and unconstitutional.
To vacate those actions, to enjoy their enforcement, and to preserve the status of a co-equal
Congress and an apolitical military.
The warning, Kelly and the other five Democratic lawmakers offered to military personnel that
they must refuse illegal orders took on renewed meaning this evening.
Charlie Savage, Eric Schmidt, John Ismay, Julian E. Barnes, Riley Mellon, and Christian
Trebert of the New York Times reported that when the US military attacked a small boat
apparently coming from Venezuela on September 2, 2025, the first such attack of what now
number at least 35, it used a secret aircraft that had been disguised to look like a civilian
plane.
The journalist's report that disguising a military aircraft to look like a civilian plane
is a war crime called perfidy.
Shielding your identity is an element of perfidy, former deputy judge advocate general of the
US Air Force, retired Major General Stephen J. Lepper, told the reporters.
If the aircraft flying above is not identifiable as a combatant aircraft, it should not be
engaged in combatant activity.
The Defense Department manual concerning the law of war explains that combatants must
distinguish themselves from the civilian population and may not kill or wound the enemy
by resort to perfidy.
It explicitly prohibits fainting civilian status and then attacking.
Letters from an American was written and read by Heather Cox Richardson.
It was produced at SoundScape Productions, dead in Massachusetts, recorded with music
composed by Michael Moss.
