The problem with getting a free pass on your responsibilities is that, after a while, you begin to think that you don’t have any. That’s what’s happened to the Democrats. They’ve gotten so used to thinking the rules don’t apply to them because ORANGE MAN BAD that when the rules do get applied to them, it feels like outrageous oppression. Take the “illegal orders” video, a combination of stupidity, narcissism, treachery, and blue falconry rarely equaled even by the low standards of the Dems.
The six schmucks who appeared in it have been congratulating themselves on their “courage” for the last week. It was the courage to cajole other people into nuking their lives for a news cycle of Democrat spin. Except this time, there is some fallout on the people pushing the button. The Trump administration could have given them a pass. They are used to perpetually getting a pass. But he isn’t offering one this time, and they are mortified. Oh well.
Let’s talk about Captain Mark Kelly, and I emphasize “Captain” because Captain Mark Kelly always uses his rank in his X username and elsewhere, because it’s very important to him that he is a captain. Yes, your rank belongs in your bio because that’s what you were – I’m an O6 too, and it is in my bio. It’s a credential. Take it for what it’s worth. But it’s not in my username. I’m Kurt, just Kurt. I just find it tacky to use rank all the time. So do most other officers. But it’s actually important for other reasons discussed below.
Anyway, Captain Kelly is now being investigated under the UCMJ, the Uniform Code of Military Justice, for his participation in that obnoxious video. That’s not a good thing for him. He could be called back to active duty and prosecuted in a court-martial. I cover the potential penalties below.
At the outset, I have some questions about whether it’s a good idea to do that, because I tend to defer to free speech even where there is a technical argument for prosecution. I would normally let it be handled in the political arena. But these aren’t normal times, thanks largely to Captain Mark Kelly et al. I have to fall back on the threshold question – what’s the rule? The new rule, supported by all six of these people, is to use the legal system to target political opponents. Would they give Trump or any of his folks a pass? We know the answer because they not only did not do so, but actively invented crimes to harass them. Well, there can only be one rule. I didn’t want this to be the rule, but they overruled us. So they can choke on their new rule.
But that is a political analysis, not a legal analysis. Let me provide one; you can weigh my credentials as a retired colonel with command experience and a lawyer with 30+years of experience. This investigation is not frivolous because a potential charge lies here. This is not, like the “crimes” of Donald Trump, a frame job manufactured out of whole cloth. But you can decide for yourself. You’ve seen the festival of onanism that was the video. Now look at the applicable statute:
18 U.S. Code § 2387 - Activities affecting armed forces generally
(a) Whoever, with intent to interfere with, impair, or influence the loyalty,
morale, or discipline of the military or naval forces of the United States:
(1) advises, counsels, urges, or in any manner causes or attempts to
cause insubordination, disloyalty, mutiny, or refusal of duty by any
member of the military or naval forces of the United States; or
(2) distributes or attempts to distribute any written or printed matter which
advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal
of duty by any member of the military or naval forces of the United
States—
Shall be fined under this title or imprisoned not more than ten years, or
both, and shall be ineligible for employment by the United States or any
department or agency thereof, for the five years next following his
conviction.
That’s the statute. You can make your own judgment. What’s mine? 18 U.S. Code § 2387 is potentially applicable to the conduct on the video. As a lawyer, I can see both sides. I know how I would prosecute it, and how I would defend Captain Kelly using substantive defenses (that he did not violate the statute), a First Amendment defense (free speech), and a Speech and Debate Clause defense (which I think is weak, but I would argue it).
There’s a threshold question: Why is a retired O6 (a Navy captain or a full colonel in other services) subject to the UCMJ? Because Captain Kelly is a retired active duty O6. If you retired from active duty, you’re still subject to the Uniform Code of Military Justice. This is apparently supported by case law; I have not reviewed it, and that might be another avenue for the defense. If convicted, there are a variety of penalties, none of which is the death penalty. I’m sure he’s going to squeal girlishly that Donald Trump is trying to kill him. He’s such a freaking embarrassment.
One problem Captain Mark Kelly might have is that he uses his rank and affiliation in connection with his obnoxious, potentially punishable statements. That ties him into the military in ways that, if he were just a senator, probably would not apply. “Hi, I’m a Navy captain and I’m telling you to disobey orders if your feelings tell you so” hits differently from “Hi, I’m some Twitter rando and I’m telling you to disobey orders if your feelz tell you so.”
The problem for Captain Kelly is that it’s clear to all but the willfully obtuse that his stupid video was a transparent attempt to undermine President Trump, our elected commander-in-chief. They are playing both dumb and innocent – “Why, we were just advising military personnel of their right.” Nonsense, unless you believe that they just happened to decide one day was a great day to remind soldiers of what every soldier knows, that you are not allowed to obey an illegal order. Oh, and to put it specifically in the context of future orders you expect the president to issue.
Now, I spent 27 years in the Army and never once had an illegal order. This is because an illegal order is not just an order you don’t like. It’s not even an order that MSNBC doesn’t like. Illegal orders are very, very rare, and it is no surprise that the example everyone uses is the My Lai massacre of almost 60 years ago. It’s just not a thing.
But these guys want to make it a thing as a means to cause division within the military by accusing Trump of being illegitimate. They specifically named Trump. But none of them has been able to cite a Trump illegal order. This is because he hasn’t issued any. They’re playing the “I’m just asking questions” game. They’re pretending that this is all hypothetical. It’s like a little kid who’s holding his fist in front of another kid’s face and going, “I’m not hitting you. I’m not hitting you.” We all know what they’re doing. They know what they’re doing. It’s nonsense, childish, and unworthy of people who served. We are not obligated to accept manifestly bogus justifications for outrageous misconduct.
Captain Mark Kelly thought it was good politics to betray his oath. Well, welcome to Consequencesville, population you.
What do I think is going to happen? Will Mark Kelly be called back to active duty and punished under the UCMJ? I think they won’t charge him in the end, but they are going to investigate him, and the investigation is likely to, correctly, point out that he’s an absolute disgrace. Not only were these creeps improperly undermining the man elected to be commander-in-chief, but some dumb young soldier – including dumb young officers (which Super Agent 003 Slotkin mentioned specifically on TV) is going to listen to these guys and get himself/herself/themself (one JAG has sacrificed – hopefully – her career on the altar of trans perversion by insisting she will not follow orders regarding discharging them) into a ton of trouble and carry a bad conduct discharge with him/her/them for the rest of his life. These jerks are not going to care. They won’t be showing up at Leavenworth to share margaritas. I find this a disgraceful betrayal of our troops – as officers, especially senior ones, we should be protecting our troops from making dumb mistakes, not encouraging them to do so to create political martyrs who can be used and tossed away like so many Cindy Sheehans once the cameramen go home.
Now, why are all of these six jerks not being investigated? Because Captain Mark Kelly is the only active-duty military retiree among them. The other military personnel were honorably discharged, but they are not subject to the UCMJ because they are not military active-duty retirees (I, for example, was a federal commissioned officer who retired from the California Army National Guard, so the UCMJ does not cover me in retirement). Neither are the ridiculous CIA hacks who are pretending to be the equivalent of vets, which is just embarrassing. They are the equivalent of DMV clerks, except DMV clerks occasionally accomplish something.
There is my analysis. That’s what I think. The bottom line is screw Mark Kelly – oh, I mean, Captain Mark Kelly.