Sen. Kelly says Trump doesn't “understand the Constitution”
SCOTT DETROW, HOST:
Last week, a handful of Democratic lawmakers had this to say to America's troops.
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MARK KELLY: Our laws are clear. You can refuse illegal orders.
ELISSA SLOTKIN: You can refuse illegal orders.
CHRIS DELUZIO: You must refuse illegal orders.
SLOTKIN: No one has to carry out orders that violate the law or our Constitution.
DETROW: That was Senators Mark Kelly and Elissa Slotkin, as well as Congressman Chris Deluzio. Democrats didn't specify what illegal orders they meant, but after the video's release, President Trump posted on social media that the video amounted to, quote, "seditious behavior" that was, quote, "punishable by death." Although the president later clarified he was not threatening death, he maintained that it was seditious behavior. And other members of the Trump administration condemned the video as well. Here's White House press secretary Karoline Leavitt speaking to reporters on Monday.
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KAROLINE LEAVITT: You can't have a functioning military if there is disorder and chaos within the ranks, and that's what these Democrat members were encouraging.
DETROW: Defense Secretary Pete Hegseth called the video, quote, "despicable, reckless and false." And then the Pentagon launched an investigation into one lawmaker specifically - Arizona Senator Mark Kelly, a retired combat pilot and astronaut. Here's Leavitt again.
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LEAVITT: I think what Senator Mark Kelly was actually trying to do was intimidate the 1.3 million active-duty service members who are currently serving in our United States armed forces with that video that he and his Democrat colleagues put out.
DETROW: Hegseth said that because Kelly is the only one of the lawmakers who received full military retirement - he retired as a Navy captain - he's the only one still subject to military justice and could be recalled to face a court-martial. A move like that would be unprecedented. Former military lawyer Kevin Carroll, who served in the first Trump administration, says it's most likely not a serious legal threat.
KEVIN CARROLL: I think it's more of an intimidation tactic than a coherent litigation strategy. An attempt to intimidate elected officials into not criticizing misuse of the military.
DETROW: CONSIDER THIS - the Pentagon is now investigating a retired Navy pilot for, quote, "serious allegations of misconduct." Coming up, we will speak to Senator Mark Kelly.
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DETROW: From NPR, I'm Scott Detrow.
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DETROW: It's CONSIDER THIS FROM NPR. The Trump administration is facing legal questions about their National Guard deployments across the U.S., as well as the deadly airstrikes on boats in the Caribbean. Last week, five House and Senate Democrats released a video speaking directly to members of the military. One of those lawmakers was Arizona Senator Mark Kelly. On Monday, the Pentagon said it was investigating the senator for, quote, "serious allegations of misconduct." Kelly responded with a statement of his own, saying, quote, "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." For more on all of this, we are joined by Arizona Democrat Mark Kelly. Thanks for being on the line.
KELLY: You're welcome.
DETROW: A lot of people have seen the video. What specifically compelled you to put it out now?
KELLY: Well, there's a number of us that served in the U.S. military and the intelligence community that, you know, were talking about some of the actions that the administration has taken with regards to sending troops into U.S. cities. The president has talked about sending troops into more cities, to use cities as training grounds, which means you're going to be using U.S. citizens for training of the U.S. military. We're concerned about that. And you add on top of that that here's a president who has previously said - in his first administration, he has talked about shooting protesters in the legs. In 2016, he talked about killing the families of terrorists. And when told that that would be illegal, that would be an illegal order, he said that the military would not refuse to follow his orders.
So the group of us were concerned and we wanted to send a very simple message out - something that's consistent with the Uniform Code of Military Justice - that you do not have to follow, and you should not follow, illegal orders. So we said, follow the law. Donald Trump responded with, kill them. So, Scott, I think what he's doing here is he's declaring that loyalty to the Constitution is punishable by death.
DETROW: Why do you think specifically - like you said and like you've said several times in the wake of this, you were just stating a fact, stating the law. Why do you think Trump and Hegseth responded the way that they did?
KELLY: I don't know. I think any other president would have responded, if they responded at all, with two words - of course. And then maybe followed it up with, of course, members of the military should not follow illegal orders. But, you know, Trump is, you know, who he is. And he's certainly outrageous and unpredictable. I don't think he understands the Constitution. I'm not so sure Pete Hegseth does, either. Neither of them seem to understand the Uniform Code of Military Justice because we recited what is in the Uniform Code of Military Justice and now he wants to court-martial me under the Uniform Code of Military Justice. It just doesn't make any sense.
DETROW: A big story of the first term was that Trump had those instincts, like you said. And it's been documented that there were a lot of people in positions of power in the military - whether it was Secretary Mattis, Secretary Esper, others - who stopped him. Who said, no, you can't do that. Do you have any faith that Secretary Hegseth would ever say, no, Mr. President, you're wrong?
KELLY: Zero faith that he would do that. I mean, he just seems to, you know, react in whatever way the president wants him to. And that's where the whole system starts to break down, when you have, you know, members of his Cabinet that - and that's any organization, for that matter. You put a bunch of sycophants around you, a bunch of yes people, you do not get good outcomes. When I was the commander of the space shuttle, especially, I used to tell my shuttle crew members that they were required to question my decisions. It was not optional. And if you think we should be doing something differently, and especially if it affects safety and mission success, you have to tell me about it, and we're going to figure it out together.
DETROW: You know...
KELLY: I don't think Donald Trump has that - you know, an ounce of that instinct in his bones.
DETROW: This - there's bigger things to talk about, but this jumped out to me, and I wanted to get your response. In the back-and-forth on social media, Secretary Hegseth put "captain" in quotes, addressing you - almost mocking your military service. I'm wondering what your response to that from the secretary of defense was.
KELLY: You know, he's - you know, he's a Twitter troll, right? You know, I take my job incredibly seriously. I'm a United States senator. I have accountability over the U.S. government. As part of my responsibility, I'm on the Armed Services Committee. I - I've been in hearing rooms with Secretary Hegseth before. He's not a serious person. I don't know what he meant by that. To be honest, I don't really care.
DETROW: Yeah. We did get some - us and other outlets got some feedback from some retired officers saying, this video wasn't needed. Everyone in the military knows this. That, you know, you're saying something that's obvious to people in uniform. What's your response to that point of view?
KELLY: Well, I'm not sure everybody in the military knows it. It's something that you're - for me, at the U.S. Merchant Marine Academy, I may have heard once. I don't ever remember hearing it again. You know, we talk a little bit about the Geneva Conventions. I remember hearing that in SERE school. I think, you know, a friendly reminder about what the law is and that you're required to follow the law. We also wanted to show members of the military that we have their backs and that we understand the situation they might find themselves in.
DETROW: Just real quick, we've got about 30 seconds left. What can you tell us about this FBI development from today? Have they given any justification for what an investigative scope would be, the reason for that?
KELLY: I mean, we got something. Sergeant-at-arms got something in an email. We're taking a look at it.
DETROW: All right. Senator Mark Kelly, thank you so much for joining us to talk about this.
KELLY: Appreciate it. Thank you.
DETROW: All of these developments made us curious about what the video suggested - refusing illegal orders. If a member of the armed services wanted to disobey an illegal order, how would they go about doing that? What would the consequences be? To answer those questions, my co-host Ailsa Chang spoke with Rachel VanLandingham, a former military lawyer and current law professor at Southwestern Law School in Los Angeles.
AILSA CHANG, HOST:
I've often heard members of the military say to me, they call them orders, not requests, for a reason. But let me ask you, if an order is illegal, can an active-duty member refuse to follow that order?
RACHEL VANLANDINGHAM: Yes. If an active-duty member knows that an order is unlawful, they must disobey it, or if they should know it's unlawful - that is, in order to commit a crime. Go shoot those peaceful protesters in Chicago. That is manifestly unlawful, and not only does a military member - should they disobey it, they must disobey it. But they do so, Ailsa, at their peril.
CHANG: OK. Let's explain why it is at their peril. Explain how it would work if a member recognizes that an order is unlawful and decides they will not follow it.
VANLANDINGHAM: Well, then because the military's lifeblood as a hierarchical organization has run on obedience to orders for centuries, there's a presumption that all orders, if issued by a competent authority and that relate to a military duty, that all orders are presumptively lawful. So if a military member disobeys an order, even if it's unlawful, they potentially could be court-martialed for disobedience. They will be vindicated at court by a military trial judge who has the responsibility to decide the legality of the order, but there is a military crime, and actually several related crimes, regarding disobedience of orders. But again, that's disobedience of lawful orders. But the military member then has to show at court that the order they disobeyed was unlawful.
CHANG: In your experience as a military lawyer, how would you characterize the success rate of a member of a military in a court-martial challenging an order that was deemed unlawful by them?
VANLANDINGHAM: Well, it normally doesn't get that far. And one of the most recent cases we've had was a major in the United States Army who didn't want to obey the order to wear the United Nations insignia during the 1990s in a deployment to the Kosovo region. And he challenged that. He worked with his - the military lawyers who said this was a lawful order. His commanders worked with him. And he was eventually court-martialed because he refused to wear the U.N. beret and the U.N. insignia. And it went up to our highest military appellate court, and they said this was a matter of policy, this was not an unlawful order, and his conviction was upheld. So it's - there's not a great success rate. However, there is a duty to disobey an order to commit a crime, such as, kill that detainee in your custody, right? And if the military member follows that unlawful order, they're liable - criminally liable for murder at that point.
CHANG: Wow. OK. Well, this investigation into Kelly specifically, it is the latest move by the Trump administration to seek retribution against President Trump's perceived political enemies. But this time it's the Pentagon, not the Justice Department, leading the investigation. Why do you think the administration is using the Pentagon instead of DOJ to go after Kelly here?
VANLANDINGHAM: It's part of intimidation and threatening. And because Senator Kelly, you know, who is a war hero, a NASA astronaut and a powerful senator, I think that he is the only one that they could do this against because there are unfortunately - I think it's unconstitutional, but there are - there is unfortunately UCMJ, military criminal law jurisdiction, over Senator Kelly because he's a retiree. Even reservists, when they're not on active duty, don't fall under the Uniform Code of Military Justice. But they - but he does as a retiree. And there are numerous crimes - military unique crimes - that have a greater expanse over freedom of expression. That is, the First Amendment doesn't apply as broadly to those in the military.
So I think they're using, or threatening to use - 'cause this is not going to go anywhere. We have the speech and debate clause, which provides for immunity from civil and criminal prosecution for activities that legislators do as lawmakers. And it provides protection for more than just their activities while they're speaking on the Senate or congressional floor. It has to do with their duties related to being a lawmaker, and Senator Kelly made this video in his duties as a lawmaker. So I think there's a constitutional shield against any kind of criminal prosecution. And the Founding Fathers drafted that clause in order to protect sitting lawmakers from intimidation and harassment by the executive branch through the use of harassing criminal prosecutions.
CHANG: OK. Well, putting aside potential legal defenses that Senator Kelly might have, the threat is to have him court-martialed. Let me just ask you, can a retired officer face court-martial for actions after he retires from the military? Has this ever happened before?
VANLANDINGHAM: Yes, it has. And the most recent case in which the constitutionality of that far-reaching jurisdiction was challenged, and it was upheld at the circuit court level, we had a retiree from the Marine Corps that sexually assaulted an American citizen in Japan. The Japanese didn't want to prosecute, and U.S. federal criminal law did not apply extraterritorially to that sexual assault, so the only thing that applied was the Uniform Code of Military Justice's offense of the criminal offense of sexual assault. So the military recalled that retired service member for prosecution. But you can see it's been used as a jurisdictional gap-filler, not as a way to intimidate and chill and threaten sitting members of Congress.
CHANG: OK. Well, assuming that Kelly can be court-martialed even though he has retired from the military, based on what Kelly said in this video that we're talking about, is there anything, in your legal opinion, that could justify a court-martial?
VANLANDINGHAM: Absolutely not. Senator Kelly restated accurately the actual law. Military members should and must disobey all orders that they either know are unlawful or should know are unlawful. An order to commit a crime, they should be disobeying, or an order that they otherwise know is unlawful, they should be disobeying. And so reminding service members of their legal duties is an - under no stretch of anyone's imagination, an actual crime.
DETROW: That was Rachel VanLandingham, a former military lawyer and a current law professor at Southwestern Law School in Los Angeles, speaking to my co-host Ailsa Chang.
This episode was produced by Jeffrey Pierre, Ava Berger, Lauren Hodges and Karen Zamora. It was edited by John Ketchum, Justine Kenin and Adam Raney. Our executive producer is Sami Yenigun.
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DETROW: It's CONSIDER THIS FROM NPR. I'm Scott Detrow.
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