Bonus 195: The Mark Kelly Meshugas

Secretary Hegseth has threatened to court-martial a sitting U.S. Senator for a ... truthful video. Even though Kelly *is* subject to court-martial, such a prosecution would face insuperable obstacles.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter and other unscheduled issues will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

I wanted to use today’s bonus issue to write about the remarkable news from just before Thanksgiving that Secretary Hegseth has directed the Secretary of the Navy to look into whether U.S. Senator Mark Kelly, who is also a retired Naval officer, should be court-martialed for “potentially unlawful conduct”—to wit, his participation in this video reminding members of the armed forces of their right (and in some cases, their duty) to refuse to follow unlawful orders:

The notion that a sitting U.S. Senator could be subject to court-martial may well have surprised a lot of folks who aren’t experts on military law (or long-time readers of this newsletter). But federal law does indeed authorize the court-martial of retired (as opposed to separated) servicemembers—even for offenses they commit after they have retired.

That said, there are multiple serious—and, in my view, fatal—obstacles standing in the way of a court-martial of Senator Kelly ever getting off the ground, let alone producing an appeal-proof conviction. Below the fold, I ask—and try to answer—the five most basic questions about any such case, and why it seems to me that Hegseth’s behavior, though dangerous and creepingly (if not creepily) authoritarian, is also not likely to go anywhere. Especially given what we’re learning about the U.S. military’s continuing, lethal activities in the Caribbean, it’s the video at the heart of this that’s the real story, not Hegseth’s meshugas in trying to vilify Senator Kelly.

For those who aren’t paid subscribers, we’ll be back Monday (if not sooner) with our regular coverage of the Court. For those who are, please read on.